Rogers, R (on the application of) v Swindon NHS Primary Care Trust & Anor

Facts

The appellant, Ann Marie Rogers, a 54-year-old woman living in Swindon, discovered a lump in her breast in October 2004; biopsies following a mammogram revealed invasive carcinoma. She underwent a mastectomy, breast reconstruction and auxiliary surgery in January 2005, followed by chemotherapy from March until 4 July 2005 and then radiotherapy and adjuvant hormone therapy. Told by her son of research into HER2-positive breast cancer, she was tested at her request and on 30 June 2005 tested positive. Her consultant, Dr Cole, agreed to treat her privately with Herceptin, waiving his fees, and treatment began on 27 October 2005; she could not afford the estimated course cost of £26,328.22 and, having borrowed £5,000, was able to pay for only two infusions. Herceptin is licensed for late stage breast cancer but not for early stage disease, and had not been appraised by NICE. Following a letter before claim, the Swindon NHS Primary Care Trust treated the correspondence as an application for exceptional funding, which its Clinical Priorities Committee refused, a decision upheld on appeal and by the Trust's Board. Judicial review was issued on 12 December 2005; permission was granted by Charles J on 21 December, together with an interim funding order. Bean J dismissed the claim, holding the decision neither irrational nor a breach of her human rights, but granted permission to appeal.