High Court orders judicial review of NHS England’s refusal to fund life-changing treatment for six-year old boy

Latest decision to refuse funding delivered to family days before Christmas

A six-year-old boy has been granted permission for a judicial review to challenge NHS England’s decision to refuse him funding for a potentially life-changing treatment. Their latest decision to refuse funding was delivered to the family days before Christmas.

The boy, who is subject to an anonymity order and is known as “A”, has a genetic and rare metabolic condition phenylketonuria (“PKU”), which means he is unable to metabolise phenylalanine, a substance contained in most protein-rich foods. Untreated, phenylalanine will accumulate in blood in dangerous concentrations and can cause serious cognitive impairment and/or permanent brain injury.

PKU is generally managed through dietary restrictions limiting proteins to restrict intake of phenylalanine supplemented with protein replacements to ensure development and growth is maintained.

Though most patients with PKU are able to manage their diet to avoid protein rich food, A also has autism. His autism is at the severe end of the spectrum, and he is currently non-verbal. Helping A to control his diet to ensure he ingests enough of his protein replacement has been extremely difficult. Due to the sensory needs inherent to his autism, A often rejects supplements and will only accept foods with a high protein content, rejecting substitutes leading to heightened levels of phenylalanine (a protein) in his blood representing a significant risk of serious injury to A.

In the last 12 months, about 60% of A’s blood tests indicated his phenylalanine was outside the target range – despite huge efforts to help A to manage his condition by his parents and school.

The NHS Consultant with responsibility for treating A’s PKU (Dr Santra from Birmingham Children’s Hospital) advised that he should be prescribed a drug known as ‘Kuvan’, which would help A to metabolise phenylalanine, reducing the danger to him and enabling him to lead a more normal life.

Kuvan is a new and expensive treatment which is not routinely commissioned for PKU. The Consultant applied to NHS England by an “Individual funding request” for funding for A on the grounds his case was “exceptional”. The request was refused as it was not accepted A was exceptional.

A further application, supplemented with further supporting evidence was also refused. NHS England maintained that despite having both PKU and severe autism, A was not sufficiently exceptional to warrant funding.

A’s family then consulted Peter Todd of Hodge Jones & Allen, one of the UK’s leading lawyers in challenging medical funding decisions, who secured funding from the Legal Aid Agency to enable a legal challenge to be brought against NHS England.

As NHS England refused to change their mind, on 11 October 2016, court proceedings were commenced against NHS England seeking permission to seek a judicial review of the refusal of funding. The challenge was brought on the basis that the exceptionality test, used to determine whether a drug not offered under the NHS should be funded on an individual basis, had been mis-applied. The challenge also included allegations of breaches of A’s human rights. NHS England are contesting the claim.

Her Honour Judge Karen Walden-Smith, sitting in the High Court on 23rd November 2016, granted A permission for a full judicial review hearing, which is expected to be heard by about the middle of 2017.

An NHS England panel met again on 14 December to review their decision in light of the impending judicial review and this time accepted that A was an exceptional case but then refused the funding on the grounds the clinical effectiveness and cost effectiveness of Kuvan had not been established. A’s treating Consultant believes the clinical effectiveness of Kuvan is well established.

Peter Todd of Hodge Jones & Allen says: “A’s family are very disappointed with NHS England. Up until their meeting in December they had vigorously denied that A was an exceptional case and refused funding on that basis. However, at their latest meeting they recognised that A is an exceptional case yet refused on new grounds that were never raised before and also seem to be without foundation. My client does not want to take this action but wants A to have the treatment he has been recommended by his NHS Consultant. I hope the court will intervene, if NHS England do not back down.”

A’s father added: “No family should have to fight with the NHS for over 18 months to ensure that their child is given proper treatment. We, as a family, have found the whole process extremely frustrating, unfair and inhumane. Our treatment has been exacerbated by NHS England’s approach. For 18 months’ they have refused treatment based on this not being an exceptional case yet have now admitted it is an exceptional case but, have introduced a raft of new reasons to justify their refusal. It is clear to me they do not want to fund this life-changing drug and are prepared to put my family through a court case. The fact that their latest decision was delivered days before Christmas speaks volumes. I can only hope that the High Court can do what is right for my son and our family.”

Ends

Notes for Editors

Hodge Jones and Allen

• Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice.
• For almost 40 years’ the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
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• Co-founder Patrick Allen is still at the helm of the firm he co-founded in 1977.
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