R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392

Key point

  • A decision affecting fundamental rights will fail the anxious scrutiny test where no competing socioeconomic considerations are involved


  • Rogers (R) was suffering from breast cancer and applied for funding of an unlicensed drug – Herceptin.
  • R had paid privately for some treatment but could not afford to continue it
  • The Swindon NHS (S) refused to pay for the treatment despite it having clear therapeutic benefits and enough money to cover the cost of all eligible patients
  • S’s policy was to refuse treatment unless there were exceptional clinical or personal reasons for offering it
  • R applied for judicial review, arguing that the decision was irrational; however, the High Court refused her application
  • R appealed to the Court of Appeal


  • Was the ‘exceptional circumstances’ rule unreasonable?

Held (Court of Appeal)

  • Appeal allowed; there were no good reasons to refuse treatment to eligible patients barring exceptional circumstances

Sir Anthony Clarke M.R.

On unreasonableness 

  • R v Ministry of Defence, ex p Smith laid down the rule that when a decision interferes with human rights there must be sufficient justification before it is held to be reasonable: [56] 

In the current case

  • A decision to refuse funding for treatment will be subject to “rigorous scrutiny” since it affects the life and death of R: [56]
  • ‘In giving it that scrutiny, it is important for the court to have in mind that a critical feature of the circumstances of this case is that…this is not a case about the allocation of scarce resources’: [57]
  • Had the policy for reimbursing unlicensed drugs been based on balancing financial considerations with the needs of patients, it would not have been irrational, but that is not the policy: [73]
  • The policy was irrational as personal circumstances cannot be relevant where financial considerations are irrelevant and there is no clinical evidence that a clinical distinction could be made between patients: [79] – [82]
  • There are no persuasive grounds for refusing treatment to some patients who meet the clinical requirements and offering it to others: [63] 
  • Personal characteristics of the patient are irrelevant when providing treatment: [82] 


  • Rogers is notable for reinforcing the rule laid out by Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith; that decisions that violate human rights require additional justification to prove they are reasonable
  • However, unlike Ex p Smith, the appeal was successful in Rogers as the policy concerned did not fall within the socioeconomic realm where courts tend to deference to the government and Parliament