Article 8 European Convention of Human Rights (ECHR)

The High Court has recently ruled in favour of a Primary Care Trust in relation to a decision concerning the allocation of scarce resources in R (Condliff) v North Staffordshire PCT [2011] EWHC 872 (Admin).  This article examines the case itself and provides some practical lessons to be learnt from it.

Background facts

The Appellant, Mr Condliff, was morbidly obese, with a BMI in excess of 40 (but below 50) and as a result of underlying medical conditions open bariatric surgery was considered to be too high a risk.  The PCT’s policy was that laparoscopic gastric bypass surgery was not routinely available to patients with a BMI of below 50, but patients in this category were able to apply to the Individual Funding Review (IFR) Panel to seek exceptional funding.

Mr Condliff applied to the IFR Panel in February 2010.  His application was rejected and he made a further application in September 2010.  It is this further application which was the subject of the review.  The further application referred to deterioration in Mr Condliff’s quality of life, including the fact that he was largely housebound and could no longer attend church.  He was also unable to play the guitar due to swelling and pain in his hands.  The lack of mobility had caused him to become depressed and withdrawn.  This application was screened by a Public Health Consultant who did not consider that this additional information demonstrated exceptionality.  The Consultant considered that the deterioration in Mr Condliff’s health was foreseeable in view of his co-morbidities and likely to be consistent with the cohort of patients in which he would fall.      

Test for Exceptionality and the Social Factors exclusion      

In considering exceptional circumstances, the PCT policy contained the following provision in relation to social factors:

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

The reasons given for excluding social factors were included in the Appendix to the policy.  They included the fact that allowing non clinical social factors to be included would be unfair, as the Panel might not be able to make objective, fair and even handed decisions; avoiding such factors was also likely to reduce the risk of discrimination.

The challenge

Mr Condliff alleged that the exclusion of social factors was a contravention of Article 8 of the ECHR.  He further alleged that the PCT had failed to provide sufficient reasons for its decision and that this (i) was a breach of Article 6 and (ii) rendered the decision overall, unlawful and/or irrational.

Engagement of Article 8

Article 8 provides that:

“Everyone has the right to respect for his private and family life…

There shall be no interference…with the exercise of this right except such as is necessary in accordance with the law and is necessary in a democratic society…for the protection of health…or the protection of rights and freedom of others”.  

The Court was satisfied that the consultant who considered the application had rejected it on the basis of falling within the expected deterioration of that group of patients and did not reject it on the basis of purely social factors.  Notwithstanding this conclusion, it went on to look at the lawfulness of the social factors exclusion.

Mr Condliff argued that the PCT had a positive obligation to ensure that its decision considered his Article 8 rights.  He argued that the PCT should have balanced his Article 8 rights against other considerations and only then could it conclude that there were no exceptional circumstances.  The judge rejected the argument that there was a positive obligation and stated that the primary purpose of Article 8 is to prevent arbitrary state action which restricts private and family. The duty primarily is to “respect” private life and not to deliver an unrestricted private and family life for all.     
  
In reaching this view, the judge considered a number of cases involving the allocation of resources.  The clear thrust of these cases was that Article 8 is generally not engaged when a PCT is deciding to allocate limited medical resources.  The judge recognised the wide margin of appreciation afforded to states when they decide upon the allocation of limited medical resources.

The judge further justified his conclusion by finding that the social factors exclusion was required to ensure a fair balancing exercise between the interests of the individual applicant and the community as a whole (engaging the second limb of Article 8). 

Article 6 and the failure to give reasons 

The decision letter by the Public Health Consultant simply stated that there was no new evidence for the Panel to consider and that the additional information provided did not demonstrate exceptionality.  He did not give reasons as to why the new information did not demonstrate exceptionality.

Article 6 provides that:

“In the determination of his civil rights…everyone is entitled to a fair and public hearing…”

The Appellant argued that his Article 8 rights were civil rights deserving protection under Article 6.  As such, it was argued that in failing to give detailed reasons for its decision, the PCT had acted incompatibly with Article 6.  
  
The judge repeated that his primary position was that there was no positive obligation under Article 8 in this case, and therefore Article 6 did not apply.  As further justification, the judge found that the decision of the PCT was an administrative one.  The PCT was determining whether or not to allocate medical resources on the basis of evaluative judgments where there was no underlying “right” to a particular treatment, only a target duty to provide it.  Article 6 was therefore not engaged.

Even if Article 6 had been engaged, the justification for possibly excluding social factors was set out in the Appendix to the policy.  This was available to the Appellant and his medical referrers.  Therefore even if there had been a breach of Article 6, no substantive remedy would have been awarded.

Lack of reasons generally

The judge agreed that more detailed reasons should have been given.  The PCT was required to provide detailed reasons, by virtue of the 2009 Directions [1]  and under their common law duty of fairness.  This aspect therefore was a breach of duty. 

However, the judge declined to quash the decision.  He stated that it had been open to the Appellant to seek detailed reasons and he had failed to do so.  It was also open to him to instigate the complaints process and he did not do so.  Further, there would have been no useful purpose in remitting the decision as the consultant had subsequently, during the court proceedings, provided reasons and these were rational.

Conclusion

As well as re-affirming that Article 8 does not provide a right to treatment, this decision goes further, by finding that there is no positive obligation to consider all potential, non clinical Article 8 factors when considering the allocation of resources.

A learning point to take away is the reminder of the importance of providing detailed reasons for decisions.  As a minimum, PCTs should notify the applicant:

  • who has considered the case
  • what documents/information they have gathered and taken into account
  • what policy/tests they had regard to in reaching the decision
  • why the documentation does not support the case for exceptionality
  • their rights of appeal/clarification.

Whilst the courts have recently been supportive of the difficult decisions that have to be made and the significant financial pressures in the allocation of medical resources, there cannot be any relaxation in the administrative ways in which these decisions are taken.  The processes must continue to be transparent, consultative and robust. 

Footnotes

[1] Directions to Primary Care Trusts and NHS Trusts concerning decisions about drugs and other treatments 2009