The Claimant, a 9 year old girl who suffers from a rare form of spinal muscular atrophy, sought a prescription for a novel form of medication known as Nusinersen. Access to the drug is controlled by a “Managed Access Agreement” published by NHS England, which requires a number of eligibility criteria to be met including that the patient is “independently ambulant”. Clinicians at Manchester NHS Foundation Trust, and Great Ormond Street Hospital, decided that that condition was not met, and that as such they were regrettably unable to prescribe the medication. The Claimant sought to argue that the question of whether someone is “independently ambulant” is one of fact, and that the clinicians ought therefore to have accepted the evidence of her family and friends that she was able to walk. The Judge, however, agreed with the Defendants that that assessment, though on the face of it straightforward, was one of clinical judgment and that clinicians had rationally applied their clinical expertise in carrying it out. The case raises questions of the extent to which assessment of seemingly non-technical medical symptoms can be a question of clinical judgement; and of the extent of a clinician’s public law duty to make enquiries about a patient’s symptoms before making a prescription decision.
Fenella Morris QC and Benjamin Tankel represented the successful Trusts.