Court rejects appeal over denial of drug on NHS

The Constitutional Court yesterday confirmed a judgment which had dismissed an application filed by a breast cancer patient who had sued the government for refusing to provide her with free treatment.

The woman, who has since died, lost her case but the judge presiding over the first court had ruled that the director general for health ought to be concerned about his department's double standards.

The woman, who has remained unnamed for reasons of privacy, had filed her application against the director general of the Health Department and the Health Minister.

She had claimed a violation of her right to life and to freedom from discrimination because the department was denying her free medication in the form of the drug Taxotere on the grounds that it was too expensive.

She explained that she had still managed to receive the treatment through her friends' generosity and her condition had immediately showed signs of improvement.

The authorities' refusal was unjustified on both medical and ethical grounds. And although they had denied they provided other patients in Malta with Taxotere, they had admitted to providing other patients with Taxol, a member of the group of medicines known as taxanes or taxoids.

The woman added that she paid her taxes and social security contributions in the same manner as other citizens and was entitled to treatment like everyone else.

She called on the court to provide her with a remedy, including the immediate provision of the medication free of charge.

The first court heard how a consultant oncologist at the Royal Marsden Hospital had seen the woman and recommended the use of Taxotere as the most appropriate chemotherapy drug in her circumstances.

The consultant's recommendation was upheld by her local oncologist but when she applied for it on the national health service she was refused for two reasons, namely that the normal procedure for the application had not been followed and the chairman of the Drug and Therapeutics Committee had advised the director general of health not to buy the drug from public funds.

The court heard that an 80mg phial of Taxotere cost more than Lm400, and the health department was refusing to provide Taxotere from public funds not only to the woman but also to other women suffering from the same illness and who were in the same condition as the applicant.

But it resulted that another woman had been given Taxol for ovarian cancer according to the letter of approval dated February 27, 1997. She was given 10 phials for free on December 11, 1996, before the approval was given.

The drug was used to treat breast cancer, however. The court said it could not tell whether her request for Taxol for ovarian cancer was simply a manoeuvre on her part or that of her doctor so that she would be able to obtain the drug.

The first court had dismissed the authorities' plea that the applicant had another remedy at her disposal, that of requesting a judicial review under section 469A of the Code of Organisation and Civil Procedure.

But it upheld the plea that the Health Minister was wrongly suited because it was clear that he was not involved in the matter. The decisions were taken by the director general at the health department.

The first court also dismissed the woman's plea that the decision of the director general was in breach of her right to life because the woman was not being denied adequate medical care but specific treatment which the health department felt was not justified at this stage.

The woman's claim that the decision was in breach of her right to freedom from inhuman and degrading treatment was also dismissed on the grounds that the director general was not threatening to stop her from taking Taxotere, which she was buying from her own money and with the help of her friends.

The department's refusal to provide her with free medicine did not amount to inhuman and degrading treatment although it was a tough decision which could have serious consequences for the applicant and other women in her position.

The woman's claim that the decision was in breach of her right to freedom of discrimination was also dismissed, for neither the Constitution nor the European convention on human rights laid down that the state was obliged to provide free medical treatment but was only bound to make adequate provision for medical care.

The woman lodged an appeal to the Constitutional Court composed of Mr Justice Joseph D Camilleri, Mr Justice Joseph A Filletti and Mr Justice Anton Depasquale.

After her death, the appeal was continued by her siblings.

On appeal the court found that it approved of the manner in which the first court had evaluated the evidence produced and ruled that there was no discrimination against the woman.

The court confirmed the whole of the judgment of the first court.