'Exceptional circumstances' - access to low priority treatments after the Herceptin case

Abstract

What is the link between patients' rights to NHS treatment and PCTs' duties to live within their budgets? This was the issue in Rogers v Swindon PCT [2006], in which a patient had been denied trastuzamab (Herceptin^®) for early-stage breast cancer. In principle, rationing is lawful and PCTs have to make hard choices about spending priorities, but they may not ignore the interests of needy patients in doing so. Rather, they must balance the 'corporate' interests of the PCT with the 'clinical' interests of individuals. One way of doing so is to adopt an Ethical Framework at the macro-level to guide NHS resource allocation, but to also recognize 'exceptional cases' at the micro-level, even if the treatment is generally considered to be a low priority. This article is primarily concerned with these micro-level cases. Patients and clinicians should know how the balance is struck. Such a system operates in Berkshire, but there is plenty of room for debate about how it should develop.