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Frequently asked questions (FAQs)
David Lock, Barrister, and Chris Newdick, Professor of Health Law give you their views.
Click on a question below to see their views.
1. Should PCTs consider social factors in making IFR decisions?
There is no decided case which explains whether PCTs are required to take social factors into account but the consensus of legal opinion is that PCTs would be acting lawfully if they addressed a case solely with reference to the presenting clinical factors of a patient in determining exceptionality. We would recommend that you listen to the presentation on Judicial Review for a full discussion of this point.
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2. Are individual funding requests only made for exceptional clinical circumstances?
Not necessarily. Some individual requests for funding might be for extremely rare conditions for which the PCT has no care pathway and it is unlikely the PCT will ever see again. In these cases the PCT may choose to manage the request through the IFR panel, although increasingly PCTs are developing commissioning policies which cover even the rarest commissioning decisions.
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3. How relevant is the Human Rights Act to IFR decisions?
This is a technical area of law. Even though human rights issues are often deployed in IFR cases, these issues rarely, if ever make a difference to the final result, but they may increase the level of scrutiny of a claim by the court on a Judicial Review. The European Court of Human Rights (ECHR) is about a balance of rights between individuals, the state and the other individuals who are affected by actions by a government body. If a PCT properly follows its own policies and pays attention to Government guidance it is highly unlikely to breach anyone's human rights.
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4. If a patient is unresponsive or intolerant to a treatment, is this likely to make them exceptional?
If a proportion of other patients is likely to become intolerant, or is likely to be unresponsive to the particular treatment, then this is a predictable reaction. Where the patient’s reaction is typical of a minority of patients who react in this way, the adverse reaction is unlikely to constitute exceptional clinical circumstances for an individual patient. We recommend that PCTs consider developing commissioning policies to define treatment options for patients who are intolerant or unresponsive to the treatment in question.
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5. What information should PCTs post on their websites about their local decision making processes?
Individual PCTs should put policies and procedures on websites, together with an electronic version of any patient leaflet and the application forms that PCTs have devised for applications. Previous cases should not be put on an open website, even in anonymised form. PCTs could however put IFR cases in an anonymised form on an intranet site which is only open to NHS staff to help develop an understanding of how the IFR process works. PCTs should be cautious however to avoid IFR decisions ever "setting a precedent" which will lead to other applications for the same treatment. If this occurs PCTs should develop a commissioning policy for the treatment in question rather than rely on an IFR decision.
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6. Does a PCT have to fund all NICE recommended treatments?
PCTs are obliged to fund all treatments for patients who come within the clinical conditions described in NICE
Technology Appraisal Guidance (
TAGs). All other NICE Guidance should be carefully considered by PCTs.
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7. If a patient has privately purchased a treatment which the PCT does not fund and claims to be responding well to that treatment, is this likely to amount to exceptional clinical circumstances?
Whilst there may be cases where this is true, overall it is highly unlikely to be so. The usual situation is that the treatment was prescribed because the clinicians thought there was a substantial chance it would work for this patient. It was thus foreseeable that this treatment would be clinically effective for this patient, and for other patients in similar clinical circumstances. Hence if it is later proved to be clinically effective for this particular patient this is unlikely to amount to exceptional clinical circumstances.
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8. What is a "Judicial Review"?
A Judicial Review is a High Court case in which the court examines whether a public body such as a Primary Care Trust has acted in accordance with its public law duties. These are the duties provided in the statutes and regulations which govern the PCT, the obligations imposed on all public bodies by the common law and the Human Rights Act.
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9. Do witnesses attend to give evidence in a Judicial Review?
The usual rule is that a Judicial Review considers the case on the evidence provided by both sides. The key documents are the papers produced by the public body which has taken the decision which is under challenge. The court does not usually hear live evidence. Very occasionally live evidence is called in Human Rights challenges but this is highly unusual.
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10. Who decides a Judicial Review case?
The case is decided by a Judge who sits alone. There is no jury.
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11. Can damages be awarded in a Judicial Review case?
Breaches of public law duties rarely give rise to a damages claim. Damages claims are private law actions which are a different form of legal action from Judicial Review cases.
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12. What happens if a Judge finds for the challenger, known as the Claimant, in a Judicial Review case?
The Judge will usually make a Declaration that the public body has acted in breach of its public law duties and direct the public body to look at the matter again in a lawful manner. The claimant will be awarded their legal costs.
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13. Can anyone start a Judicial Review case?
No. The person bringing the case must have a "sufficient interest" to bring the case although this is interpreted in a generous way by the courts. A patient or relative will have a sufficient interest.
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14. Are Judicial Review cases heard in public?
Yes, but in medical cases an order is often made by the court to prevent anyone identifying the names of the parties to protect confidentiality.
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15. Can a Judicial Review be brought against an individual doctor or only against the PCT?
Judicial Review claims are brought against a public body. Save in very particular instances (such as a s12 doctor in a Mental Health case) these cases are not brought against individuals.
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16. Where are Judicial Review cases held?
Judicial Review cases are heard in the Administrative Court. This court only sits in London, Birmingham, Leeds, Manchester and Cardiff.
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17. Are there steps that a Claimant has to take before starting a Judicial Review case?
Generally a claimant has to take all steps within the public body to seek to resolve the dispute without going to court. Judicial Review is a remedy of last resort. Then the claimant needs to follow the "Judicial Review Pre action Protocol" (which is on the Ministry of Justice website at: http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_jrv.htm).
This involves sending a letter of claim setting out the case against the public body. The public body is required to respond to this letter, usually within 14 days.
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