Cancer patients are urged to sue over NHS bills

Legal experts say patients are entitled to state health care at the same time as privately buying a cancer drug  -  despite Government claims that the practice is banned.

Linda O'Boyle: Died from cancer after been denied NHS treatment because she had opted to fund her own cancer treating drugs

At least six patients are taking legal action against decisions by health trusts not to fund the latest cancer drugs. Their cases may be supported by a judicial review to challenge the Government's stance.

But the moves come too late for bowel cancer victim Linda O'Boyle.

The NHS occupational therapist died after being forced to pay for all her treatment once she opted to buy a cancer drug for which the Health Service refused to pay.

The 64-year-old from Billericay, Essex, and her husband Brian spent their savings on cetuximab, which costs around £3,700 a month. 

But then Southend University Hospital NHS Foundation Trust billed them £11,000 for chemotherapy which it usually provides free.

Mr O'Boyle, an NHS manager for 30 years, said trusts were running a 'lottery' with patients' lives.

The Department of Health says co-payment is not illegal but contravenes codes of practice and could open the door to a two-tier service. 

But law firm Halliwells has already established the right of a patient with advanced bowel cancer to continue having chemotherapy if her condition deteriorates and she needs Avastin, which is not funded by the NHS.

After a six-month battle, the firm won the commitment for continued funding from Cumbria primary care trust based on its obligations under the Human Rights Act 1998 and NHS regulations.

ancer specialist Professor Karol Sikora, co-author of a report on copayment for Doctors for Reform, said it was only a matter of time before the NHS had to admit it was on shaky legal ground.

Doctors for Reform, which represents 1,000 medics, has raised £35,000 to fund a judicial review challenging trusts which withdrew free care if a patient added private drugs to NHS treatment.

Professor Sikora said Britain was spending roughly the same amount on cancer per head as the rest of Europe, but there are ten new cancer drugs routinely available in
France that cannot be prescribed on the NHS. 

e added: 'It makes no sense to stop people topping up NHS treatment in a bid to improve their health. 

'We don't stop people spending their own money on living more healthily, buying more expensive food for example, so why on earth is the NHS trying to make patients pay for everything if they choose to buy the latest drugs?

'We need to make the NHS efficient and completely equitable so all patients get a core service which they can add to with a top-up payment.' 

The Department of Health said it had not issued blanket guidance to trusts. If advice was sought on co-payment by an individual trust, it was told of three sets of guidelines in 1986, 2003 and 2004 which ruled out the practice.

A spokesman said: 'A patient cannot be both a private and an NHS patient for the treatment of one condition during a single visit to an NHS organisation.

'But in all other respects, patients who choose to be treated privately are entitled to NHS services on exactly the same basis of clinical need as any other patient.'