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Retired policeman to appeal to Europe

Legal battle continues despite go-ahead for gastric bypass

5 September 2011

Tom Condliff, the retired policeman who won a legal battle with his primary care trust over a gastric bypass operation, has decided to challenge the trust’s initial refusal to approve the operation at the European Court of Human Rights.

Condliff, described as “morbidly obese” by a High Court judge, brought a judicial review against North Staffordshire PCT.

He weighed more than 20 stone but failed to qualify for the bypass because his BMI was less than 50.

The High Court heard earlier this year that Condliff’s “needle phobia” delayed his treatment for diabetes, after which he “developed a gross appetite and began to gorge himself”. The former policeman argued that the PCT’s policy, preventing it from taking “social factors” into account when determining exceptionality, breached his right to family life under article 8 of the Convention.

Among the social factors which he said should have been considered were his use of his a wheelchair, social isolation and the impact of his illness on his wife.

Delivering judgment at the Court of Appeal in Condliff v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, Lord Justice Toulson said the right to respect for family and private life under article 8 of the ECHR did not put the NHS under a duty to favour some patients over others.

Toulson LJ said there was 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.”

Toulson LJ dismissed Condliff’s appeal. Lady Justice Hallett and Lord Justice Maurice Kay agreed.

However, the PCT decided last month that it would, after all, fund the gastric bypass operation.

“The request and the new supporting medical evidence was thoroughly examined by our clinically led panel and Mr Condliff’s clinical circumstances were found to be exceptional as outlined in our policy,” a spokeswoman for the trust said.

The spokeswoman said ‘exceptional clinical circumstances’ meant that the patient was “significantly different from the general population of patients with the condition in question” and was likely to gain “significantly more benefit” from the treatment than might be expected of the average patient.

The spokeswoman added that a request based on ‘exceptional circumstances’ could not include introducing a new treatment for a definable group, however small.

Frank Patterson, partner at MPH Solicitors in Manchester, confirmed that an application on behalf of the retired policeman had been lodged at the European Court of Human Rights.

However, he said the firm, which represented Condliff at the High Court and the Court of Appeal, would not be acting for him in Europe.

Instead, Patterson said the firm’s role would be limited to acting in costs hearings relating to the earlier domestic proceedings.

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