A DECISION by Swindon Primary Care Trust not to fund treatment with the drug Herceptin for cancer sufferer Ann Marie Rogers was arbitrary in the extreme, the Court of Appeal has heard.

Ms Rogers, 54, a mother of three, has likened the stand taken by the PCT to a death sentence.

She has appealed against Mr Justice Bean's ruling in the High Court last month that the PCT's policy of only paying out for exceptional cases was not irrational and unlawful.

The former restaurant manager, of Haydon Wick, has borrowed £5,000 for treatments but says she cannot afford to pay for further courses of the drug.

She is to continue receiving the drug which is said to halve the chances of the aggressive HER-2 form of breast cancer returning pending the outcome of her two-day appeal.

Her counsel, David Pannick QC, told the Master of the Rolls Sir Anthony Clarke, Lord Justice Brooke and Lord Justice Buxton that the PCT's decision was unreasonable, the result of a failure to give proper consideration to relevant factors and a breach of her right to life under the Human Rights Act.

He said: "We say that where you have undisputed clinical need it is then arbitrary in the extreme to say to the patient you can't have this drug.' "Our submission is that one searches in vain for a cogent reason why the PCT refuses to provide Herceptin in the circumstances of this case.'' Ms Rogers listened as Mr Pannick told the judges the fact was she had a 25 per cent chance of remaining free of the disease after 10 years and she had a 57 per cent prospect of breast cancer killing her within 10 years.

Mr Pannick said it was undisputed that clinical trials had indicated Herceptin reduced by 50 per cent the risk of recurrence for patients like Ms Rogers, who were HER-2 positive, and that she satisfied the clinical criteria to receive the drug. Her oncologist had prescribed it as an appropriate treatment and there was no suggestion by the PCT that there was any other drug or treatment which offered as good a chance of survival.

There was also no evidence before the court from any specialist which suggested that Herceptin was not the best treatment for a woman in her situation.

During last month's hearing the PCT did not suggest that its decision was based on the costs of providing the drug. But it argued that the National Institute For Clinical Excellence had not yet authorised the drug's use.

Philip Havers QC, for the Swindon Primary Care NHS Trust, said it was following guidelines laid down by Health Secretary Patricia Hewitt in refusing to fund Ann Marie Rogers' treatment with the drug.

"The trust's approach was a considered one, taken after receiving advice from the local Cancer Network. This approach is shared by many other trusts," he said.

  • The appeal continues