Two women take legal action for 'top-up' breast cancer drugs

Health Secretary Alan Johnson ruled that patients are not allowed to combine private and NHS care as this creates a "two-tier" system.

But solicitors for Debbie Hirst and Colette Mills said such a system already existed because some primary care trusts paid for treatment with Avastin while others did not.

In a letter to the Royal Cornwall Hospitals Trust, which is providing Mrs Hirst's chemotherapy, lawyers claim that health officials - acting on Government orders - are breaking the law.

Melissa Worth, of law firm Halliwells in Manchester, wrote: "The argument supporting the desire to avoid a 'two-tier system' within the NHS is spectacularly flawed.

"There already exists a two-tier system arising out of the fact that some trusts sanction the use of complementary drugs such as Avastin.

"Other Trusts allow patients to continue to receive chemotherapy free of charge while [exercising] their right to complementary drugs which they pay for privately."

Mrs Hirst, of St Ives, put her house on the market to fund the £60,000 cost of Avastin - only to be told last month that Mr Johnson had banned patients from "topping-up" their NHS care in this way.

The 56-year-old, whose cancer has spread to her liver, said: "I know that if I don't fight for this drug, my time will be limited. All I'm asking for is the right to buy it."

The trust faces a High Court injunction, followed by a judicial review, if it stops Mrs Hirst's NHS treatment because she paid for her own Avastin.

Mrs Mills, 58, from Hutton Rudby in North Yorkshire, is locked in a similar wrangle with South Tees NHS Trust over the drug.

Both women's cases will cite the right to medical care under the Human Rights Act and Mr Johnson's duty of care under the 1977 NHS Act.