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NHS not under a human rights duty to favour some patients over others

29 July 2011

The right to respect for family and private life under article 8 of the ECHR does not put the NHS under a duty to favour some patients over others, the Court of Appeal has said.

Ruling in the case of Thomas Condliff, an ex-policeman who sued his PCT for denying him a gastric bypass, Lord Justice Toulson said there was no “universal yardstick” for determining the scope of a state’s positive obligations under article 8.

He went on: “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.”

Delivering the leading judgment in Condliff v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, Toulson LJ said there was “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 this must seem to Condliff, Toulson LJ said he did not see that the PCT’s policy involved 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.”

Condliff had argued that the PCT should have taken into account social or non-clinical factors, such as his use of his a wheelchair, social isolation and the impact on his wife.

The ex-policeman, who has diabetes, weighs over 20 stones and has a BMI (body mass index) of 43. The North Staffordshire PCT limits gastric bypass operations to those with a BMI of more than 50 (see solicitorsjournal.com, 11 July 2011).

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