LAW REPORT: 14 March 1995 Withholding of treatment for cancer upheld

A decision by a local health authority not to provide funding for further treatment of a child, whose chances of surviving it were said to be minimal but who without such treatment would almost certainly die, on the grounds that it would not be in the child's best interests and that its substantial cost when weighed against the small prospect of success would not be an effective use of the authority's limited resources, was not unreasonable and should not be quashed by the court.

The Court of Appeal unanimously allowed an appeal by the health authority and reversed the decision of Mr Justice Laws, earlier the same day, who had granted a judicial review application brought by the father of B, a 10-year-old girl suffering from acute myeloid leukemia, following the authority's decision not to provide up to £75,000 to fund further treatment.

B had suffered a relapse following earlier chemotherapy, irradiation and a bone marrow transplant. Her chances of surviving the further course of chemotherapy and the second bone marrow transplant now proposed were put at between 10 and 20 per cent. But without such treatment, she had only six to eight weeks to live. The decision not to fund the treatment was said to be unlawful.

Bruce McIntyre (Sharpe Pritchard for Kerseys, Ipswich) for the applicant; Nigel Pitt (Mills & Reeve, Cambridge) for the authority.

MR JUSTICE LAWS said the authority's discretion as to how to fulfil its duty towards patients had to be exercised "rationally" in the public law sense. Moreover, a decision which adversely affected the fundamental right to life should only be made if it could be substant ially justified on public interest grounds.

The decision not to fund the treatment was said to be in B's best interests. That seemed to involve medical questions as to the chance of success and risk of unnecessary suffering; but there was a third issue which was not purely medical, namely the views of the patient or her family. Yet Dr Zimmern, the authority's decision maker, did not regard their views as relevant.

The authority also took the view, wrongly on the evidence, that the treatment would be "experimental" rather than solely for the patient's benefit. The authority's real reason seemed to be that the cost of the treatment "would not be an effective use of resources". It was self-evident that funds available for health care were not limitless; but merely to point to that fact said nothing about the wisdom or legality of a decision to withhold funding. Where the life of a 10-year-old child might be saved, by however slim a chance, the responsible authority must do more than toll the bell of tight resources. In any case, by the very nature of B's problem, the authority might only need to provide the £15,000 cost of chemotherapy; given B's low chance of survival, it was unlikely the additional £60,000 for the transplant would be called for. The authority also failed to take this into account.

The authority's decision should be quashed but his Lordship would not order it to provide the funding; it must reconsider the matter according to the right principles.

SIR THOMAS BINGHAM MR, reversing that decision, said the courts were not arbiters of the merits of cases of this kind. To uphold Mr Justice Laws' decision, though tempting, would be a cruel deception.

To complain that Dr Zimmern failed to have regard to the patient's or her family's wishes was to shut one's eyes to the reality of the situation. He was under considerable pressure and was vividly aware of their views.

Nor was it wrong to categorise the proposed treatment as "experimental". The chemotherapy had a success rate of 10 to 20 per cent and only if it succeeded would it be possible to embark on the bone marrow transplant. It was not a treatment with a well proven track record of success; it was at the frontier of medical science.

In a perfect world, treatment could no doubt be provided no matter how much it cost, but to believe this was possible was to shut one's eyes to the real world. Difficult and agonising decisions over the use of limited resources had to made.

While having every sympathy for B, his Lordship felt bound to regard this as an attempt, wholly understandable but none the less misguided, to involve the court in a field of activity where it was not fitted to make any decision favourable to the patient.

SIR STEPHEN BROWN P and LORD JUSTICE SIMON BROWN concurred.

Paul Magrath, Barrister