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Last Updated: Wednesday, 15 February 2006, 11:05 GMT
Woman loses Herceptin court bid
Ann Marie Rogers
Ann Marie Rogers is devastated by the ruling
A breast cancer patient has lost her landmark legal challenge to be allowed the drug Herceptin on the NHS.

Ann Marie Rogers, 53, had gone to court after she was denied the drug - which is not licensed for early-stage breast cancer - by Swindon NHS bosses.

But the judge ruled that the trust had not been acting unlawfully.

Mrs Rogers has been given leave to appeal against the court's decision, and will be able to receive Herceptin treatment until then.

Mrs Rogers is in the early stages of breast cancer, but has an aggressive form of the disease.

Individual circumstances

When the judge made his ruling, Mrs Rogers simply shook her head and looked downwards.

She is fighting for her life
Yogi Amin, Ann Marie Rogers' solicitor

Speaking outside the court, her solicitor Yogi Amin, of Irwin Mitchell, said: "Mrs Rogers is bitterly disappointed by the decision. It has come as a shock.

"She felt it was common sense that a policy to refuse to provide treatment, where other authorities are providing it, should be struck down."

He added: "It's an ordeal for her. This legal fight is something she is forced to do. She is fighting for her life."

Mr Amin said Mrs Rogers felt the hopes of women had been built up after the health secretary said PCTs should not refuse patients the drug solely on the basis of cost.

Making his ruling, Mr Justice Bean said he knew there were different opinions on whether or not to prescribe Herceptin to patients with early-stage breast cancer.

But he added: "The court's task is not to say which policy is better, but to decide whether Swindon's policy is arbitrary or irrational and thus unlawful.

Not illegal

Ruling Swindon had not acted unlawfully, the judge said: "Accordingly, despite my sympathy with Ms Rogers' plight, I must dismiss the claim for judicial review."

The drug hasn't been proven to the extent that it should be freely prescribed
Rae Purnell

Jan Stubbings, speaking for Swindon PCT, said the judge had vindicated the trust's actions.

She added: "If something has not been approved as a treatment, and has not been through the licensing process, its safety and benefit haven't been absolutely checked.

"This wasn't an economic decision."

Mrs Rogers' case was the first of its kind to reach court.

Herceptin has been licensed in England and Wales for the treatment of advanced breast cancer.

But pressure is mounting for the NHS to use it on patients with early-stage cancer, as research has shown it is effective in fighting the disease.

However, the drug must first be licensed, and then assessed by the NHS drugs watchdog, the National Institute for Health and Clinical Excellence (NICE).

NICE, which determines if drugs are cost-effective, has said it is one of five drugs it has selected for fast-track appraisal.

In the meantime, some trusts have been hesitant to fund the drug when asked.

Other women, including nurse Barbara Clarke, had threatened legal action. But their local NHS trusts had decided to fund the drug - which costs around 20,000 per year - before their cases reached court.


In November, Health Secretary Patricia Hewitt intervened when North Stoke Primary Care Trust refused to fund the drug for mother-of-four Elaine Barber.

It targets the HER-2 protein, which can fuel the growth of breast tumours
Herceptin prevents this process happening
Around a fifth of breast cancers are HER-2 positive
It is currently licensed for use in women with advanced breast cancer - where the disease has spread within the breast or to another organ
Early stage breast cancer refers to the first occurrence of the disease
The cost for one year's treatment with Herceptin is 20,000 pounds

Ms Hewitt said she wanted to see the evidence upon which health bosses had made their decision and within a day the trust had reversed the decision, citing Ms Barber's "particular exceptional circumstances".

Following Mrs Rogers' High Court judgement, a Department of Health spokesman said its position remained unchanged.

He added: "PCTs need to take into consideration a whole range of factors before making a decision whether to fund Herceptin for a woman with HER2 positive early stage breast cancer.

"Ahead of a decision on licensing, or NICE appraisal, such decisions will continue to be made at a local level on a case by case basis."

But Joanne Rule, Chief Executive of the charity CancerBACUP said cancer patients would see that as 'postcode prescribing'.

She added: "The people who call our helpline want to know that decisions about their treatment depend on clinical need and not on where they live, how much money they have, or how 'exceptional' they are in comparison to someone else."

See Ann Marie Rogers' solicitor react to the decision


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