Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust

The central question in this case is whether article 8 of the European Convention on Human Rights makes it unlawful for a Primary Care Trust (PCT) to adopt an Individual Funding Request (IFR) policy by which all such requests are to be considered and determined exclusively by reference to clinical factors.

That is the policy of the defendant (the PCT). The claimant in these judicial review proceedings, Mr Condliff, argues that the policy is unlawful. In an impressively clear and well reasoned judgment, dated 7 April 2011, his Honour Judge Waksman QC rejected the argument and dismissed the claim. Before the judge there were a number of issues, but Mr Condliff’s appeal is limited to two grounds. These are:

1.

that the judge was wrong in law in failing to hold that the PCT’s policy of excluding social or non-clinical factors from consideration breached Mr Condliff’s rights under article 8; and

2.

that the judge was wrong in law in failing to hold that the PCT breached Mr Condliff’s right under article 6 by failing to provide him with its reasons for its adverse determination of his article 8 rights.

I gratefully adopt the judge’s summary of the facts:

“1.

This is a claim for judicial review of the decision of the Defendant, North Staffordshire Primary Care Trust (“the PCT”) made on 13 October 2010 whereby it refused a renewed individual funding request (“IFR”) by the Claimant, Mr Condliff, for laparoscopic gastric by-pass surgery to be funded by the NHS. Mr Condliff is morbidly obese, with various associated co-morbidities and his health is deteriorating…

2.

Mr Condliff is 62 and lives in Stoke on Trent, within the catchment area of the PCT. As a result of congenital problems, he developed diabetes and other health disorders. Following problems with treatment (or the lack of it due to a severe needle phobia), the insulin he should have received over a number of years was not delivered as timeously or as effectively as it might have been. The diabetes and other health problems associated with it worsened. Following a course of insulin delivered in an acceptable manner, the Claimant developed a gross appetite and began to gorge himself. His weight increased as his health problems multiplied. He tried all other relevant non surgical interventions including dietary and lifestyle and drug interventions for his gain in weight but was not successful. He is rendered morbidly obese with a BMI (body mass index) in excess of 40 kg/m2. His co-morbidities include renal impairment, hypertension and obstructive sleep apnoea.

3.

Laparoscopic gastric by-pass surgery (“the Surgery”) is a form of bariatric surgery. It is an alternative to open surgery with is too dangerous to be performed on Mr Condliff. It is common ground that it is clinically appropriate for Mr Condliff to seek the Surgery which may reduce his weight and alleviate his other serious symptoms.

4.

The relevant primary policy of the PCT (“the Primary Policy”) was to provide the Surgery as a routine operation to all those whose BMI was more than 50, for whom the clinicians say it is necessary and who then consent to it. Mr Condliff was not eligible because his BMI was less than 50. He was however able to make an IFR for the Surgery on the grounds of exceptionality which he did on 2 February 2010 through his GP Dr Linney, supported by various specialists who had been treating him. At a meeting of the PCT on 11 March 2010, this was rejected, as notified to him in a letter dated 17 March 2010. Over the next 6 months his condition deteriorated and a request was made to the PCT by Dr Linney in a letter dated 22 September 2010 with enclosures to ask the PCT to reconsider the IFR application. But originally they were sent to the wrong address. Later the letter was forwarded by e-mail to the PCT but without any enclosures. Accordingly, the only material before the PCT was the letter itself. See paragraph 25 of Dr Harvey’s witness statement.

5.

In the letter Dr Linney referred to Mr Condliff’s various clinical conditions on page 1 and on page 2 said that she had seen a real deterioration in his physical and mental condition in the three months while she had been away on leave and asked for the earlier decision to be reconsidered. She referred to the fact that he now had to use a wheelchair and apart from medical visits was housebound. He could no longer attend Church, one of his previous interests, nor could he play the guitar due to swelling and pain in the hands. His diabetes had caused problems in the left eye and as he had almost reached his limit for laser therapy and as it was likely to deteriorate further, it was in effect a lost cause. His lack of mobility had caused him to become depressed and withdrawn, he suffered from incontinence and his wife had to get up several times in the night to address this. Nor could he shower or dress himself. Dr Linney said that the Surgery would help control his diabetes and hence the related retinopathy and renal failure. She referred to the fact that if he were in the Stoke PCT area he would have qualified for the Surgery because he had a BMI over 35 (it was now 43) and had several co-morbidities and that PCT had a policy with a lower threshold for surgery.

6.

The PCT did not consider that these factors mentioned merited reconsideration, as it said in the decision letter under challenge dated 13 October 2010. It said that the public health consultant who reviewed the letter felt that there was no new evidence for the panel to consider and that the additional information contained in Dr Linney’s letter did not demonstrate exceptionality.”

By s3 of the National Health Service Act 2006 (“the Act”), the Secretary of State owes a duty, in summary, to provide healthcare services to patients to such extent as he considers necessary to meet all reasonable requirements. This is a public law duty and not a direct duty owed to individual patients. By s7 of the Act the Secretary of State may direct (among others) a PCT to exercise any of his functions relating to the heath service which are specified in the directions. By secondary legislation (Regulation 3 of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, as amended) responsibility for the discharge of the Secretary of State’s duty under s3 is delegated to PCTs within their areas.

Section 22 of the Act provides that each PCT must, in accordance with the regulations, administer the arrangements made in pursuance of the Act for the provision for its area of primary medical services.

Section 23A provides that each PCT must make arrangements to secure continuous improvement in the quality of healthcare provided by it. “Healthcare” is defined as meaning services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness, and the promotion and protection of public heath.

Section 24 requires each PCT, at such times as the Secretary of State may direct, to prepare a plan which sets out a strategy for improving the health of the people for whom it is responsible and the provision of healthcare to such people. The persons for whom a PCT is responsible are defined as the people in the area of the PCT and such other people as may be specified in directions given by the Secretary of State. In preparing such a plan a PCT is under a duty to consult with such persons as the Secretary of Sate may direct.

The funding and financial duties of PCTs are addressed in ss228-231. Section 228 provides for payment to PCTs by the Secretary of State in respect of each financial year as determined by the Secretary of State. Section 229 provides, in summary, that each PCT must break even financially each financial year and s230 prohibits a PCT from the use of resources in a financial year exceeding the amount specified for it in relation to that year by the Secretary of State.

The PCT’s relevant polices and the way at which it arrived at them are described in a witness statement by Mr Warnes, the PCT’s then director of commissioning and redesign.

In 2009, following local consultation, the PCT published a strategic plan to cover the following five years. Within that plan the PCT carries out an annual process of revising its detailed policies for different forms of treatment.

Mr Warnes explained the background and the process:

“7.

It is a feature of all national healthcare systems across the world, whether in the public or private sector, including the NHS, that demand for healthcare is rising and exceeds the ability of suppliers to meet all the healthcare demands of their local populations. This is a problem in both insurance and state-run healthcare systems. The only exception to this is for wealthy individuals who have unlimited resources to buy their own healthcare. For all the rest of the world there is a gap between supply and demand.

…

13.

The PCT is under a legal duty to break even and our Chief Executive is the Accountable Officer responsible for ensuring that this requirement is met. This means that the PCT needs to consider carefully the costs of treatments and the benefits that a treatment delivers before we can agree to commission it. For the PCT, the decision to commission a particular type of treatment is not just a question of whether a medical treatment is clinically effective. If a treatment were not clinically effective, we would not commission it. However if a treatment is clinically effective, we would only commission the treatment if we could afford to do so. Our duty to break even means we need to judge whether clinically effective treatments are (a) a cost effective use of the limited resources available to the PCT and (b) affordable. As we have a fully committed and finite budget, the duty to break even means that if we commission additional services for any patient group where these are not funded at the moment, we need to pay for this by disinvestment in other services for other patient groups.

…

42.

Each year the PCT undertakes a prioritisation process whereby the budget of the PCT for the present year is examined and plans are made for the treatments to be commissioned in the following financial year. As part of that process, the PCT considers the pressures that are likely to be placed on its services and budgets, the NICE (National Institute for Health and Clinical Excellence) Technology Appraisal Guidance that is likely to be published and thereby attract mandatory funding, and any other matters that are likely to affect the PCT budget. After ranking the competing demands on its financial resources in order of importance, the PCT reaches a conclusion about which treatments and interventions it will and will not fund in the coming financial year…

43.

The PCT has adopted an Ethical Framework…These principles stand behind the PCT’s decision making processes, especially those relating to our commissioning activities. The principles emphasise that decisions should be made on the evidence, should be non-discriminatory, should take into account that our budget can only be spent once and should result in the PCT maximising the welfare of our patient population within the resources available. Every decision we make to fund one treatment means that we are effectively taking a decision not to fund another treatment. As a result, the 3 components of the Ethical Framework – effectiveness, equity and patient choice – must be carefully balanced. Although patient choice is important, it may not outweigh the other relevant factors…

44.

Our local prioritisation process involves evaluating healthcare interventions in order to decide what investments should be made with limited resources. It is a fundamental part of the commissioning business cycle.”

By this process the PCT arrives at general policies amounting to standard authorisation of treatment which falls within them.

Mr Condliff does not come within the PCT’s general policy for commissioning bariatric surgery, although there is no dispute that such surgery would be appropriate in his case. Indeed, it falls within the guidelines recommended by NICE. Mr Warnes explained in his statement that the PCT considered the NICE guidance but decided to adopt a more restrictive policy of limiting the commissioning of bariatric surgery to a person whose BMI is greater than 50 because of competing demands.

In his grounds for judicial review Mr Condliff originally argued, among other things, that the PCT’s prior approval policy was irrational in not following the NICE guidance, but in the light of the PCT’s evidence this argument was sensibly not pursued before the judge.

Mr Condliff’’s argument now relates not to the PCT’s general policy on commissioning bariatric surgery but to its IFR policy.

The PCT’s IFR policy states:

“2.1

This Policy sets out the principles and process to be adopted when…the PCT is considering any request for treatment that falls outside of…PCT policy…

2.2

The PCT recognises that there may be individual cases where a patient’s needs cannot be met through existing care pathways and therapies.

…

2.4

All such requests will only be considered for funding on an exceptional basis.

…

4.1.2

Where a particular treatment or procedure is not part of an agreed pathway or existing commissioned service, it will not be routinely funded. The patient’s request for funding for such a treatment or procedure will be considered under the terms of this Policy.

4.1.3

This Policy is intended to govern the considerations of IFRs where, following an initial review, there is deemed to be prima facie evidence of exceptionality as defined at 4.2 and in Appendix 1.

…

4.2.1

Where the PCT considers that the IFR submitted is supported by prima facie evidence of exceptionality, the request will be further considered under the terms of this Policy and via the supporting processes.

4.2.2

The request is legally that of the patient, who should give his or her consent to involvement in the IFR process on the IFR form. Although the patient may submit the request themselves, the PCT acknowledges that in most cases the IFR will be formally made by and evidence in support of the application provided by the patient’s treating consultant, GP or other clinician.

…

4.2.4

The application should demonstrate each and all of the following three criteria:

1.

It does not in fact seek to introduce a new treatment for a definable group (however small)…

2.

The patient is significantly different from the general population of patients with the condition in question who are currently excluded from funding.

3.

The patient is likely to gain significantly more benefit from the intervention than the average patient with the condition.

4.2.5

Social factors (for example, but not limited to, age, gender, ethnicity, employment status, parental status, marital status, religious/cultural factors) will not be taken into account in determining whether exceptionality has been established.

4.2.6

The onus is on the requestor to set out clearly for the IFR Panel the grounds on which it is said that the patient is exceptional. Further guidance for patients, clinicians and Panels can be found at Appendix 1 to this Policy.”

Appendix 1 states:

“Non-clinical factors:

Patients often seek to support an application for individual funding on the grounds that their personal circumstances are exceptional. This assertion can include details about the extent to which other persons rely on the patient, or the degree to which the patient has contributed, or is continuing to contribute, to society. The PCT understands that everyone’s life is different and that such factors may seem to be of vital importance to patients in justifying investment for them in their individual case. However, including such non-clinical, social factors in any decision-making raises at least three significant problems for the PCT:

•

Across the population of patients who make such applications, the PCT is unable to make an objective assessment of material put before it relating to non-clinical factors. This makes it very difficult for the Panel to be confident of dealing in a fair and even–handed manner in comparable cases.

•

The essence of an individual funding application is that the PCT is making funding available on a one-off basis to a patient where other patients with similar conditions would not get such funding. If non-clinical factors are included in the decision-making process, the PCT does not know whether it is being fair to other patients who are denied such treatment and whose social factors are entirely unknown.

•

The PCT is committed to a Policy of non-discrimination in the provision of medical treatment. If, for example, treatment were provided which had the effect of keeping someone in paid work, this would tend to discriminate in favour of those of working age and against the retired. If a treatment were provided differentially to patients who were carers this would tend to favour treatment for women over men. If treatment were provided in part on the basis that a medical condition had affected a person at a younger age than that at which the condition normally presents, this would constitute direct age discrimination.

…

In reaching a decision as to whether a patient’s circumstances are exceptional, the Panel is required to follow the principle that non-clinical or social factors including social value judgements about the underlying medical condition or the patient’s circumstances are never relevant.”

The IFR policy uses the expressions “social factors” and “non-clinical factors” interchangeably. “Clinical” and “non-clinical” (or “social”) factors are not precisely defined terms, but it would be a mistake to try to construe the policy as if it were a statute and the broad distinction is reasonably clear. Physical and psychological effects of a patient’s condition are recognised as clinical factors, but not the social circumstances in which a patient lives. For example, a patient’s immobility or inability to attend to his own person hygiene are regarded as clinical factors, but not whether he is employed or unemployed and whether he lives alone or with someone else. The judge rightly observed that social, or non-clinical, factors and article 8 factors are not synonymous. An individual’s private and family life may obviously be affected by both clinical and non-clinical factors.

No complaint is made about the policy that IFRs were intended to be only for exceptional cases. The argument is about the criteria set for determining exceptionality. This has been a difficult subject for PCTs generally because it raises problematic ethical and practical questions in deciding, as between patients competing for limited resources, what circumstances should be taken into account as potentially exceptional. The issues were considered in a paper entitled Priority Setting: Managing Individual Funding Requests, published in 2008 by the NHS Confederation, an independent charitable body whose membership includes a range of organisations within the NHS. The paper was written by Dr Daphne Austin, a consultant in public health with many years’ experience. It is worth quoting from the document at some length because of its illuminating discussion of the problems facing a PCT in determining its IFR policy.

The introduction to the paper states:

“Commissioning by it very nature focuses on the larger scale. As a result, it cannot be undertaken in a way that meets all needs of all patients in any one clinical group or address the specific needs of patients with less common conditions. Therefore, PCTs will always need an individual funding request (IFR) process to consider making additional NHS funds available for the atypical or uncommon patient.

Decision making is compounded by the fact that legitimate demands for healthcare will always exceed PCT budgets. There have always been individuals whose need for healthcare has not been met by the NHS and this will inevitably continue in the future. Indeed, unmet need is an unfortunate feature of all healthcare systems. So, how should a PCT decide which individual patients should have their request for special consideration funded? These are some of the most difficult decisions a PCT will have to make.”

Under the heading “What approach should PCTs take to individual funding requests?”, the author suggests:

“Exceptionality is essentially an equity issue that is best expressed by the question: On what grounds can the PCT justify funding this patient when others from the same patient group are not being funded?”

The author offers the following example of a policy on exceptionality, which she suggests represents the approach gaining most popularity among PCTs:

“The PCT does not offer treatment to a named individual that would not be offered to all patients with equal clinical need.

In making a case for special consideration, it needs to be demonstrated that:

•

the patient is significantly different to the general population of patients with the condition in question; and

•

the patient is likely to gain significantly more benefit from the intervention than might normally be expected for patients with that condition.”

Under the heading “Are social and demographic factors exceptional?” the author makes the following comments:

“There are several other factors frequently cited as grounds for being treated differently. Each PCT will need to come to its own view about which are acceptable. Caution is advised, however, as many feel ‘intuitively right’ although closer examination may throw up some difficult issues. Here, employment can be used as an illustration.

Many IFRs are made and funded in order to keep an individual in employment. From a public health point of view, there is no doubt that this has wider health and social benefits. It can also be argued that the treatment is more cost effective when these wider benefits are taken into account. It therefore feels right to fund on this basis – and on one level it is.

However, what would this say about access to healthcare for the unemployed? The PCT has inadvertently made a decision to dedicate more resources to maintain the health of the employed compared to the unemployed in identical clinical circumstances. Whatever the benefits of keeping patients in employment, it is suggested that there is a higher principle that overrides this consideration. This is that the NHS should treat people equally if they have equal need. There may yet come a time when society decides that the NHS should give preference to the employed, but NHS organisations are not mandated to make this value judgement at present.

However, even if a PCT were inclined to fund such a treatment, in what way could the need to stay in employment be considered exceptional? Being in work is normal, unless the employment circumstances are themselves exceptional. Thus if the PCT were to fund one individual on this basis, it may have set a precedent that inadvertently leads to a policy that employed patients should be favoured in some situations.

The nature of employment also has the potential to be discriminatory. Should a concert pianist who might benefit from a treatment to improve hand function be given preference when others such as plumbers and hairdressers, whose livelihoods also depend on hand function, are not awarded funding?

Employment is not always irrelevant, however. For example, there are two ways of providing peritoneal dialysis for end-stage renal failure. The first method is a simple system that involves the patient draining fluid in and out of their abdomen. The second method, which is more expensive, has a machine do this while the patient is asleep. Some patients have to dialyse at work but strict hygienic conditions must be maintained. An individual who works in a dirty environment might be considered exceptional because the nature of the employment significantly increases the clinical risk. A decision to fund may be justified because it is based on clinical, not social, considerations.

Many of the above arguments are relevant to other commonly cited factors such as having educational potential, being a parent and being young.

Funding on the grounds of compassion may also be sought for terminally ill patients in order that key life events can be experienced, such as a patient wanting to live to see the marriage of a son or daughter. These events are laden with emotion and meaning for the patient and their family. It can be heart wrenching to have to consider these tragic circumstances, but can it be a reason to regard such a patient as exceptional, given that a favourable decision may affect others? ”

Under the heading “What does the law have to say in relation to what is considered material to IFR decisions?”, the author states:

“The law relating to priority setting is not at all clear about the factors that PCTs should use and what they can rule out. There are a number of cases which have gone before the courts that suggest social factors may be taken into account, even though there may be good rational and ethical arguments against their consideration. Greater certainty can only be achieved through further litigation that addresses these issues.

The courts can only consider the arguments that are put before them. Poorly argued cases may set uncomfortable precedents.”

It is apparent from the last comments that this case is important not only for Mr Condliff but generally. I would add that it has been argued well and thoroughly on both sides.

Article 8 provides:

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.

The essence of the argument put forward by Mr Richard Clayton QC on behalf of Mr Condliff is as follows:

1.

The Strasbourg Court has taken an expansive view of the meaning of “private and family life” and the scope of Article 8. In Pretty v United Kingdom (2002) 35 EHR 1 it said that the concept is a broad term not susceptible of exhaustive definition. It covers the physical and psychological integrity of a person. It protects the right to personal development, and the right to establish and develop relations with other human beings and the outside world. The essence of the Convention is respect for human dignity and human freedom, and under Article 8 notions of the quality of life take on significance.

2.

The decision of the PCT not to fund the surgery recommended by the clinicians responsible for his medical care has a direct and immediate negative impact on his private and family life.

3.

The withholding of funding for such treatment is therefore an interference with his private and family life which requires to be justified. It is for the PCT to show that it was proportionate to some legitimate objective, meaning that it was no more than was necessary to accomplish that objective and that it struck a fair balance between the rights of the individual and the interests of the community.

4.

Alternatively, if the withholding of treatment is not properly categorised as an interference with Mr Condliff’s private and family life, article 8 includes a positive element. The positive element may extend to the provision of medical treatment: Sentges v Netherlands, no 27677/02, 8 July 2003; Pentiacova v Moldova, no 14462/03, 4 January 2005; Tysiac v Poland (2007) 22 BHRC 155; A B and C v Ireland [2010] ECHR 25579/05. The detrimental link between the withholding of funding for bariatric surgery and the quality of Mr Condliff’s private and family life is sufficient to establish a prima facie breach of the PCT’s positive obligation, which therefore requires justification in the same way as if the withholding of treatment is classified as a form of interference with his private and family life.

5.

Although it is accepted that the state has a wide area of discretion (or in Strasbourg language a wide margin of appreciation) in reaching decisions about the allocation of resources for which there are competing demands, there can be no justification for a blanket refusal to take into account the effect of the withholding of funding on the individual’s private and family life.

Before the judge the case was argued purely on the basis that there was a breach of a positive obligation. It was not put as a case of the PCT interfering with Mr Condliff’s private and family life. The judge rejected the claim on two grounds.

After reviewing the Strasbourg and domestic authorities he said that their clear thrust is that, generally speaking, when a public body such as a PCT decides how to allocate its resources among those who seek them, article 8 is not engaged. In such an exercise the public body has a wide area of discretionary judgment or wide margin of appreciation. If it reaches a policy decision on a rational basis, the application of the policy does not amount to an interference with the article 8 rights of any particular person who may be denied treatment as a result of the application of the policy, nor is there a positive obligation under article 8 to provide it. The PCT’s IFR policy was part of its general polices and article 8 no more gave rise to a positive obligation on the PCT in framing its IFR policy then in framing its other policies on the allocation of resources. Accordingly, there was no breach of article 8 by reason of the PCT applying the social factors exclusion in its IFR policy.

The judge further held, insofar as it was necessary, that the IFR policy was itself the product of an exercise which involved balancing the competing interests of the individual and the community as a whole. He referred to the various factors set out in the appendix to the IFR policy and considered them to be legitimate considerations. Accordingly, any necessary balancing exercise was done when the policy was adopted, and article 8 did not require the PCT to carry out an individual fresh balancing exercise each time that any IFR decision was made.

Mr Clayton submitted that the judge’s approach was wrong in a number of ways. He failed to approach the issues in a proper logical order. He ought, submitted Mr Clayton, to have approached them by considering in turn:

1.

whether the adoption of the IFR policy was within the scope of article 8;

2.

if so, whether under article 8 there was a prima facie duty to consider factors relating to the individual’s private and family life, subject to the establishment of any justification for not doing so; and

3.

whether the PCT had shown that its refusal to consider such factors was both proportionate and necessary.

In support of the submission that the policy on excluding social factors was not necessary, Mr Clayton referred to the policies of other PCTs, some of which are less draconian than this PCT’s policy. The question, Mr Clayton submitted, was not whether the position adopted by this PCT was reasonable but whether it was necessary.

Human rights law is sometimes in danger of becoming over complicated. In this case the judge is criticised for not following the pathway to reaching his judgment which Mr Clayton says that he ought to have followed. It is axiomatic that the way in which a judgment needs to be structured depends on what are the issues in the case. It is a merit, not a defect, if the judge identifies and goes directly to the real issues.

The issue in this case is as stated at the beginning of this judgment, i.e. whether article 8 makes it unlawful for a PCT to adopt an IFR policy by which IFRs are to be considered and determined solely by reference to clinical factors.

Private and family life are very broad concepts. There is no doubt that Mr Condliff’s state of health is having a seriously adverse effect on his private and family life in the most basic ways, which without bariatric surgery will continue and is likely to become worse. However, harsh as this must seem to Mr Condliff, I do not see that the application of the IFR policy involves a lack of respect for Mr Condliff’s private and family life. The policy of allocating scarce medical resources on a basis of the comparative assessment of clinical needs is intentionally non-discriminatory. The statutory function of the PCT is to use the limited resources provided to it for the purposes of the provision of healthcare, i.e. services in connection with the prevention, diagnosis and treatment of illness. To perform that function by allocating those resources strictly according to the PCT’s assessment of medical need, i.e. an assessment based on clinical factors, is to do no more than to apply the resources for the purpose for which they are provided without giving preferential treatment to one patient over another on non-medical grounds.

I turn to consider whether the view which I have expressed is confounded by any case law. Although Mr Clayton would not put it in this way, essentially his argument involves the proposition that PCTs owe a positive duty under article 8 to favour some patients over others with the same medical condition, ie to discriminate positively in favour of the former, on the basis of social factors. Many authorities were cited, but I do not find in them support for the proposition.

In arguing that PCTs owe an article 8 duty to take into account private life factors which are not clinically significant when making decisions on the allocation of funds for medical treatment, Mr Clayton relied on an example given by Lord Scott in R (Limbuella) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396. In that case the House of Lords held that the Secretary of State was in breach of article 3 by the withdrawal (under s55(1) of the Nationality, Immigration and Asylum Act 2002) of welfare support for certain asylum seekers, who were also prohibited from obtaining employment to support themselves, with the foreseeable consequence of causing them to become destitute. Lord Scott said at paragraph 69:

“An analogy would, I think, be a bar from medical treatment under the NHS. The Convention does not require signatory states to have a national health scheme free at the point of need. In this country we have such a scheme. Asylum seekers are entitled to make use of it whether or not they have applied for asylum as soon as practicable after arrival here. The section 55(1) bar on the provision of support does not extend to a ban on medical treatment under the NHS. But suppose that it did. It could not, in my opinion, sensibly be argued that a statutory bar preventing asylum seekers or a particular class of asylum seekers, from obtaining NHS treatment would not be treatment of them for article 3 purposes.”

Lord Scott’s example is not analogous to the present case, but is the antithesis of it. Lord Scott’s example was one of discrimination in the area of medical treatment by withholding treatment of individuals within a particular class for non-medical reasons. In the present case the PCT has adopted a policy of providing equal medical treatment according to medical criteria regardless of non-clinical factors.

The Strasbourg Court has said on many occasions that article 8 is directed primarily at prohibiting positive interference with an individual’s private and family life. The court has also recognised that it may give rise to positive obligations, but here the court has proceeded cautiously. There is no universal yardstick for determining the scope of a state’s positive obligations under article 8. The Strasbourg Court has been particularly wary of attempts to establish a positive obligation under article 8 in the area of the provision of state benefits, because questions about how much money should be allocated by the state on competing areas of public expenditure, and how the sums allocated to each area should be applied, are essentially matters which lie in the political domain. Such decisions are characteristically made either by politicians who are answerable to the electorate or by bodies appointed by government to make such decisions, including PCTs.

Although the Strasbourg Court has recognised that in principle article 8 may be relied on to impose a positive obligation on a state to take measures to provide support for an individual, including medical support, there is no reported case in which the court has upheld such a claim by an individual complaining of the state’s non-provision of medical treatment. Attempts have been made, but they have been unsuccessful. I would adopt the summary given by Lord Brown in R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33. In that case the Supreme Court rejected a claim that the defendant local authority was in breach of article 8 by failing to provide the claimant with the level of care which she felt was necessary for the maintenance of her basic human dignity.

Lord Brown said:

“15.

Article 8 is too well known to require citation again here. There is no dispute that in principle it can impose a positive obligation on a state to take measures to provide support and no dispute either that the provision of home-based community care falls within the scope of the article provided the applicant can establish both (i) “a direct and immediate link between the measures sought by an applicant and the latter’s private life” – Botta v Italy (1998) 26 EHRR 241, paras 34 and 35 – and (ii) “a special link between the situation complained of and the particular needs of [the applicant’s] private life”: Sentges v The Netherlands(2003) 7 CCLR 400, 405.

16.

Even assuming that these links do exist, however, the clear and consistent jurisprudence of the Strasbourg Court establishes “the wide margin of appreciation enjoyed by states” in striking “the fair balance . . . between the competing interests of the individual and of the community as a whole” and “in determining the steps to be taken to ensure compliance with the Convention”, and indeed that “this margin of appreciation is even wider when . . . the issues involve an assessment of the priorities in the context of the allocation of limited state resources” – Sentges, at p 405, Pentiacova v Moldova (Application No 14462/03 (unreported) 4 January 2005, p 13) and Molka v Poland (Application No 56550/00 (unreported) 11 April 2006, p 17). Really one only has to consider the basic facts of those three cases to recognise the hopelessness of the article 8 argument in the present case. Sentges (considered by Rix LJ at para 64 of his judgment) concerned a sufferer from muscular dystrophy complaining of a refusal to supply him with a robotic arm. Without it he depended on others for every single act and so was unable to develop and establish relationships with others; with it, his “severely curtailed level of self determination would be increased”: 7 CCLR 400, 404. The applicants in Pentiacova suffered from renal failure and complained of insufficient funding for their haemodialysis treatment. The applicant in Molka was confined to a wheelchair and, for want of positive assistance, was unable to vote in local elections. The complaints in all three cases were unanimously held to be manifestly ill-founded and thus inadmissible.”

As to domestic authorities, Lord Brown referred, at paragraph 18, to Anufrijeva v Southwark London Borough Council [2004] QB 1124, [2003] EWCA Civ 1406 as the leading domestic case on the positive obligation to provide welfare support under article 8. The case concerned three asylum seekers, one complaining of a local authority’s failure to provide accommodation to meet his special needs and the other two of maladministration and delay in the handling of their asylum applications. All failed. Lord Brown highlighted passages in the judgment of Lord Woolf CJ in which he said that it was not possible to adduce from the Strasbourg jurisprudence any specific criteria for the imposition of a duty to provide positive welfare support, but that it was hard to conceive of a situation in which the predicament of an individual would be such that article 8 required him to be provided with welfare support where his predicament was not sufficiently severe to engage article 3.

In written submissions Mr Clayton observed correctly that the present case is not about welfare benefits, but that point does not in my view assist him. Rather, it serves as a reminder that the duty of PCTs is confined to providing healthcare as defined in the Act. As I have said, I do not see that article 8 can properly be relied on as giving rise to a positive duty to take into account welfare considerations wider than the comparative medical conditions and medical needs of different patients.

Mr Clayton sought to distinguish the cases of Sentges and Pentiacova referred to by Lord Brown in paragraph 16 of his judgment and by the judge in the present case. (I make no further reference to Molka, which Lord Brown also cited, because it was not mentioned in argument.) Judge Waksman cited the following passages from Sentges:

“The court has also held that Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in exceptional cases where the State’s failure to adopt measures interferes with the individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life…

Even assuming that in the present case such a special link indeed exists…regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by State’s in this respect in determining the steps to be taken to ensure compliance with the Convention…This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources…In view of the familiarity with the demands made on the healthcare system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court”

and from Pentiacova:

“Although the object of Art. 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference since it may also give rise to positive obligations inherent in effective “respect” for private and family life. While the boundaries between the State’s positive and negative obligations under this provision do not always lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation.”

Mr Clayton accepted that the margin of appreciation recognised by the Strasbourg Court in those cases arises when a PCT is considering an IFR, but he distinguished them on the basis that they involved claims of breaches of article 8 in failing to provide the claimant with a robotic arm (Sentges) or with adequate dialysis treatment (Pentiacova), whereas in the present case the breach complained of is that the PCT excluded social, or non-clinical, factors from its consideration. The passages cited were, in his submission, supportive of the case that the PCT owed a positive obligation to consider Mr Condliff’s private and family life. He submitted that it is proper for a PCT to weigh the interests of the individual, taking into consideration any relevant social factors, against the interests of others and of the community as a whole; but that it is not proper to decide in advance to ignore social factors. That is to fetter rather than to exercise its discretion.

I do not accept Mr Clayton’s argument. Although Sentges and Pentiacova are not exactly on all fours with the present case, the thrust of those decisions is unhelpful to Mr Condliff. As Lord Brown observed, they were cases in which the impact of the decisions made on the individual’s private life could not have been greater. In the present case the decision which Mr Condliff seeks to challenge by judicial review is the decision made by the PCT on 13 October 2010 to refuse his renewed IFR. The Strasbourg Court has shown a strong reluctance to entertain complaints of that kind because of the difficult assessments required in the fair administration of a healthcare system with limited resources. The PCT has grappled with the difficult ethical and practical questions involved in setting its IFR policy. In arriving at that policy the PCT has struck what it considers to be a fair balance between the interests of individuals and the community (for example, whether patients who are carers should have priority over others) and a fair balance between different patients with similar health conditions. The case illustrates the balancing exercise referred to in Sentges and Pentiacova. The PCT is entitled to set an IFR policy which reflects what it reasonably considers to be the fairest way of treating such patients.

Mr Clayton also relied on X v Netherlands (1985) 8 EHR 235, Tysiac v Poland (2007) 22 EHRC 155 and A B and C v Ireland [2010] ECHR 25579/05.

X v Netherlands concerned the inadequacies of the Dutch criminal code to deal properly with the case of a rape victim who suffered from a mental disability. The court recognised that article 8 carried with it a positive obligation to protect such a person from the violation of her physical and psychological integrity.

In Tysiac and A B and C the court held that a state which had a law criminalising abortion, subject to certain exceptions, had an obligation under article 8 to ensure that a woman had the means of being able to establish that she fell within the exception. Imposing a prohibition on a woman having an abortion, without enabling her to show that the prohibition did not apply to her, amounted to an interference by the state with her private life. It is easy to see why the Strasbourg Court considered that the state showed a lack of proper respect for private and family life in the cases just mentioned, but they bear no comparison with the issues in the present case.

In my judgment the Strasbourg jurisprudence not only does not support, but runs counter to, the proposition that it was unlawful for the PCT to adopt a policy that IFRs should be considered and determined exclusively by reference to clinical factors.

Nothing in the authorities therefore leads me to conclude that the policy of the PCT, properly understood, is to be regarded as showing a lack of respect for Mr Condliff’s private and family life, so as to bring article 8 into play. If, however, article 8 is applicable, there were legitimate equality reasons for the PCT to adopt the policy that it did and its decision was well within the area of discretion or margin of appreciation properly open to it.

Mr Clayton submitted in his skeleton argument that the PCT breached article 6 by failing to provide reasons for its decision to “override” Mr Condliff’s article 8 rights. He argued that the PCT provided inadequate information to Mr Condliff in order for there to be a proper determination by a court whether there was a breach of his civil rights arising from article 8 and s6 of the Human Rights Act. Mr Clayton confirmed in his oral submissions that the premise to the argument was that there was a prima facie breach of article 8 which required justification.

For the reasons which I have given, I am not persuaded that the premise is established; but, adopting for the sake of argument the contrary hypothesis, I would hold that there has been a fair determination of Mr Condliff’s article 8 rights through the process of judicial review. The judge examined the reasons for the adoption of the IFR policy and concluded, if necessary, that the social factors exclusion was the result of a fair balancing exercise.

The judge ended his judgment by saying that he had very considerable sympathy for Mr Condliff and the unfortunate and serious condition in which he finds himself, but that for the reasons given by him the claim for judicial review must fail. I would echo those comments. Mr Condliff’s witness statement shows that his condition has seriously compromised his independence and dignity of life in ways which have an inevitable impact on his relationship with his wife. It is unnecessary to go into more intimate details. His life expectancy has been severely reduced. Anyone in his situation would feel desperate. The sad fact remains that the PCT on proper medical advice does not consider his condition to be exceptional for someone with his diabetes, obesity and co-morbidities. As a medical judgment that is not now challenged. The original grounds of judicial review included a claim that the PCT had unlawfully failed to apply its IFR policy on the facts of the case but that was not pursued. In my judgment the judge was right in his reasoning and his conclusion that the adoption of the IFR policy did not contravene the Convention. I would therefore dismiss the appeal.

I agree.

I also agree.