Health Check: When cancer collides with human rights

Last week's developments - the decision of Somerset Coast PCT to fund immediate treatment for Barbara Clark, and Patricia Hewitt's announcement that all newly diagnosed breast cancer patients will be tested to see if herceptin will be suitable for them - do, however, raise new questions.

First, Hewitt. The Health Secretary scored a triumph with her announcement last Wednesday. The story, however, has little news value. If, as was declared several weeks ago, herceptin will be licensed and NICE-approved by next summer, of course patients will need to be tested for suitability. My oncologist heard the story while doing research with colleagues from Yale, Milan and Berlin, and from the Mayo clinic. They laughed. Routine testing for her2 (the protein herceptin targets) has been universal in the US, Italy, Germany and other countries since 1998. As my doctor said: "We are seven years behind everywhere else, but the Department of Health presents it as an amazing step forward instead of a national embarrassment."

The Clark case raises other issues. The Somerset Coast PCT's decision undercuts the major claim of the Department of Health - that herceptin should not be prescribed until it is licensed and NICE-approved. By deciding to prescribe now, the PCT is accepting the unanimous judgement of Britain's oncologists that herceptin should be available to suitable early breast cancer patients straight away.

What was disturbing was the PCT's argument that it was giving Clark the drug because of her exceptional circumstances. Barbara Clark had threatened to take the PCT to the European Court of Human Rights. However, the terms in which the PCT announced its decision - as a case of exceptional circumstances - seems to go against the whole notion of what a human right might be. Barbara Clark has a seriously ill foster-child, and she argued that she needed to be around to care for him. She argued, rightly, that many her2-positive patients are relatively young, and that denying such women herceptin will curtail productive lives, in particular the possibility of women bringing up their families. Such arguments are emotive, but they represent a utilitarian rather than a right-based approach to human life. Are unproductive patients - those without families or important jobs - less needful of life-saving drugs?

Hewitt's announcement was clearly made in response to the Clark case, although it does not address its central issue - the provision of herceptin to patients who are already diagnosed her2-positive and need the drug long before July 2006. Several thousand women will die or suffer an incurable relapse before then. It is for this reason that the national health service services of the Netherlands, France, Germany, Slovenia, Denmark, Norway and Canada are already funding the use of herceptin without waiting for licensing and NICE equivalents.

The Department of Health should not just pass the buck to overspent PCTs, but follow European precedent and ring-fence funding for the relatively few patients who need herceptin now. Perhaps then Patricia Hewitt would really deserve some credit.

health@independent.co.uk