England and Wales High Court (Administrative Court) Decisions

1. In December 1987 the applicant was diagnosed as having the relapsing/remitting form of Multiple Sclerosis. He has at all material times lived in the area for which the respondent authority is the health authority. The authority cannot itself provide appropriate neurological services to treat the applicant but is able to purchase such services under the internal market established pursuant to sections (3) and (4) of the National Health Service and Community Care Act 1990 from a provider. The relevant provider in the instant case is the Central Sheffield University Hospital's National Health Service Trust, one of whose hospitals is the Royal Hallamshire Hospital at Sheffield. This hospital does provide neurological services. The respondent could purchase neurological services from the Trust either by an NHS contract under section 3(2) of the 1990 Act or by what are called Extra Contractual Referrals or ECRs under section 3(5) of the Act.

2. On 15th November 1995 the NHS executive issued an executive letter EL(95)97, ("the Circular") to, amongst others, all health authorities. It asked purchasing authorities and providers to develop and implement local arrangements to manage the entry into the NHS of a new drug for Multiple Sclerosis called Beta Interferon.

3. In January 1996 the applicant was referred to the Royal Hallamshire Hospital where Dr Petty, a consultant neurologist, assessed him as suitable for Beta Interferon therapy. Dr Grunewald, Dr Petty's successor, was of the same view. No funding was made available for the treatment. It will be necessary to examine in some detail what happened between January and November 1996. The applicant seeks judicial review of the respondent's decision, which was communicated to him by the letter from the Trust dated 18th November 1996, to decline to fund the treatment of the applicant with Beta Interferon.

4. The key statutory provisions are to be found in the National Health Services Act 1977 ("the 1977 Act") as amended. Section 1 imposes a duty on the Secretary of State to provide:

5. Section 2 provides:

6. Section 8(1) of the Act ... requires the Secretary of State to establish Health Authorities. Section 13(1) empowers the Secretary of State to direct a Health Authority:

7. Section 18 provides:

8. The Circular EL(95)97 includes the following provisions:

9. For the applicant, Mr Grace QC submits that paragraph 3 of the Circular makes it clear that, if authorisation is granted, the drug will became available for NHS prescription, and that paragraph 2, which is the principal operative paragraph, is expressed in the language of requirement, that is, it is mandatory. The use of the "asks" in paragraph 2, which is repeated in paragraph 9 shows, he submits, that the Circular is imposing duties and not merely giving guidance.

10. For the Secretary of State, Mr Elvin, whose submissions are adopted by Mr Seys Llewellyn, submits that it is clear on the face of the Circular that its function is to provide guidance to help authorities which they should take into account in the discharge of their functions, and not to impose mandatory requirements which are they are absolutely obliged to follow. If it is the intention of the Secretary of State to give directions which attract a statutory duty of compliance, then he should make it clear that this is what he is doing. The difference between a policy which provides mere guidance, and one in which the health authority is obliged to implement is critical. Policy which is in the form of guidance can be expressed in strong terms and yet fall short of amounting to directions. There is no reference in the Circular to the word "directions", and read as a whole there is no indication that the Circular is intended to trigger the statutory duty of compliance to be found in section 13(1) of the 1977 Act. The Circular includes words such as "asks", "suggested", "taking into account". It does not include the word "shall" or any of the other badges of mandatory requirement.

11. In my judgment Mr Elvin and Mr Says Llewellyn are right. If the Circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it into account in the discharge of their functions. They would be susceptible to challenge only on Wednesbury principles if they failed to consider the Circular, or they misconstrued or misapplied it whether deliberately or negligently: see Grandsden & Co Ltd and another -v- Secretary of State and Another (1985) 54 P&CR 86, 93 - 94.

12. If the Circular gave directions, then the health authorities would have an absolute duty to comply. I agree that it is important that the court should be slow to construe a document as a direction in the absence of clear words that that is what it is intended to be. The language of the Circular is very far from clearly demonstrating an intention to give directions. It is, of course, important to examine substance rather than form. The substance here is to be found in the language of the Circular. The absence of the word "direction" and the use of the word "guidance" in paragraph 8 and in particular in paragraph 12, are highly significant. It is also revealing that the last three paragraphs of the Circular are prefaced with the heading "further guidance and information". This implies that what has gone before is itself guidance. The nearest the Circular gets to the language of direction is in the use of the word "asks" in paragraphs 2 and 9. In my view, however, in the context of the Circular as a whole, "asks" is the language of strong guidance rather than mandatory requirement. I conclude, therefore that the Circular was guidance and not a direction.

13. Before I turn to the other issues I need to set out the history in some detail.

14. On 4th January 1996 the applicant was admitted to the Royal Hallamshire Hospital. Dr Grunewald prescribed Beta Interferon for him, but made it clear that he was uncertain as to the position as regards funding for what was a new and expensive drug since it was the first time he had prescribed it. The prescription was sent in the usual way to the hospital's pharmacy for the pharmacist to process and dispense. By reason of its expense the drug was red lined in the hospital's pharmacy records. Drugs are red lined inter alia where they are costly. The policy of red lining is a means of ensuring as far as possible that drugs and treatments are prescribed within the total budget available to the Trust.

15. In view of the fact that Beta-Interferon had been red lined, the pharmacist blocked the prescription and referred the matter to the Neuro-Sciences Clinical Directorate, with a view to determining whether the funding of the applicant's treatment with Beta Interferon could be met within the block contract of funds allocated by the respondent to the Trust.

16. A decision was taken by the chief executive of the Trust in conjunction with clinical colleagues not to authorise treatment of any North Derbyshire residents with Beta Interferon in the light of lack of funding for this drug therapy.

17. Dr Grunewald was told by the pharmacy that the Trust was unable to fund Beta Interferon as there were insufficient funds. He was told that the hospital would need to contact the respondent to negotiate additional funding. This was the first time in his clinical experience that he had been unable to prescribe a drug to a patient because of insufficient funding.

18. He explained to the applicant that the hospital was unable to treat him with Beta-Interferon. Understandably the applicant was disappointed. Meanwhile the respondent had been considering what to do about the Circular. Dr McConville (Director of Public Health to the respondents) and others in the Trent region were unconvinced about the effectiveness of Beta Interferon. They felt that it had not been sufficiently tested. Nevertheless as early as 5th December 1995 a minute of one of the respondent's meetings records: "However, the government had now issued guidelines, and health authorities could not refuse to purchase courses of treatment with the drug, but it could only be prescribed by neurological centres." Despite this, by 8th January 1996 the respondents were writing to the Trust saying that they had adopted a policy "that funding will only be considered for patients who are participating in a randomised control trial." On the same day Mr Dorrell, who was the Secretary of State for Health, delivered the millennium lecture in which he said:

19. This was picked up at this meeting of the regional directors of the Trent region, which included the respondent authority in the following way:

20. Sometime in February, the NHS executive wrote to the Directors of Public Health in the Trent region including Dr McConville, saying that any new clinical trials that might be undertaken in the UK would take several years to generate results, and that, for the time being therefore, purchasers must make decisions on the basis of knowledge now available. To hold back on the grounds that the evidence did not conclusively indicate a sufficiently large health gain to justify the costs would be at variance with the national and regional guidance that had been issued.

21. The applicant had enlisted the support of his member of Parliament, Mr Harry Barnes, who had written to Mr Fewtrell, the chief executive of the respondent. On 19th February 1996 Mr Fewtrell replied to Mr Barnes in the following terms:

22. In fact however the respondent was not having discussions with the Trust about contractual arrangements to implement the Circular. It continued to hope that Beta Interferon treatment could be limited to patients who participated in a trial. They were told in March that a national trial was planned to start within nine to 12 months coordinated from Edinburgh. On 22nd March at a meeting of the Directors of Public Health in the Trent region the directors recommended that all districts in Trent support the use of Beta Interferon only in the context of the proposed trial. On 16th April the respondent accepted the recommendation of the directors of public health and agreed to identify a sum within the ECR budget for that purpose. Arrangements would be made to inform GPs and consultants of the policy but it was felt that a public statement on the subject would be inappropriate.

23. The respondent's policy, however, became public knowledge and was featured in the News at Ten on 11th May 1996. The NHS Executive was contacted by the News At Ten for comment. On 2nd May the Executive wrote to the respondent saying:

24. The Executive had, in fact, issued a press release on 1st May which included the following:

25. Despite this the respondents did nothing to implement the Circular, but continued to see the solution to the Beta Interferon issue in a trial. Thus although a meeting of the directors of 24th May was told that the Department of Health was not going back on the original decision laid out in the Circular and that a blanket ban on Beta Interferon was not possible, on 29th May Dr McConville wrote:

26. In line with this, on 30th May she wrote to the Trust saying that the respondents were willing to purchase Beta-Interferon as part of the proposed Edinburgh randomised control trial, and that of the £50,000 in the 1996/7 health investment plan for Beta Interferon, a maximum of £40,000 may be available within Sheffield.

27. By 26th June two possible trials were being investigated: one national (the Edinburgh trial) and one within the region. The respondents were still refusing to consider any treatment outside a trial. During the Summer, representations were made on behalf of the applicant to the Prime Minister. On 3rd September Mr Major wrote a letter which included the following:

28. Whatever may have been the position with other Trent Health Authorities, the respondents were not making arrangements for the treatment to be prescribed in appropriate individual cases. By mid September the respondents had became aware that any randomised control test was at least 18 months away. They decided to reconsider their trial only policy. At a meeting held on 17th September, three options were considered. These were:

29. Dr McConville's memorandum goes on:

30. On 17th September it was decided by the respondent:

31. On 10th October Dr Winyard, who had been the author of the Circular, notified all health authorities that the randomised control trials had been postponed indefinitely. In his letter he stated that:

32. This caused the respondent's to look at their policy again. On 29th October Mr Fewtrell and Mr Whitney of the Trust met. The substance of the decision taken by Mr Fewtrell, on behalf of the respondents, was recorded in Mr Whitney's letter to the applicant's father dated 1st November 1996 which includes the following:

33. On 14th November Mr Whitney, Mr Fewtrell and Dr McConville met the applicant's father and explained the respondent's policy. That explanation was confirmed in Mr Whitney's letter to the applicant's father dated 18th November 1996 in the following terms:

34. A meeting of the respondents held on 19th November records:

35. The respondent's evidence as to whether it did change its policy at this time, and what considerations it took into account, is far from satisfactory. Dr McConville says at paragraph 15 of her affidavit that, following receipt of Dr Winyard's letter of 10th October, she gave consideration to whether or not the respondent should change its policy. She continues:

36. In my judgment it is clear that she is saying that there was no change in policy following the receipt of Dr Winyard's letter. At paragraph 27 of his affidavit Mr Fewtrell says that:

37. Accordingly, there were no additional resources to fund the applicant's treatment. It is suggested by Mr Seys Llewllyn that Mr Fewtrell's affidavit implies that there was a change of policy, but that the respondents had no new funds to make available for Beta-Interferon treatment; and the question whether any money available to the Trust within the so-called block contract should be applied in providing Beta-Interferon treatment remained a matter for the Trust.

38. On instructions, that is what Mr Seys Llewllyn says the policy was. He also told me on instructions that £50,000, which had been described in Dr McConville's memorandum of 17th September 1996 as "in the ECR budget to neurologists specifically for Beta-Interferon", and the release of which Dr McConville had said in her affidavit was an available alternative, had not been "ring fenced", and did not in fact exist. I shall return to this when I deal with the issues.

39. I can complete the narrative quite shortly. The contract agreed between the respondents and the Trust for 1997/1998 includes a statement that in relation to Beta Interferon the respondents will consider "special cases" as ECRs. I have not been told what "special cases" are. It seems that the respondents have made something of a move away from their original policy of treatment only within a trial, but I do not find it possible to assess the extent of that move.

40. Dr McConville records in her report dated 1st April 1997, that:

41. Finally, although this is not in evidence, Mr Seys Llewellyn told me, again on instructions, that it is now agreed in principle between the respondents and the Trust that the 1997/1998 block contract sum for neurological services generally will be increased by £40,000.

42. I now turn to the issues.

43. As regards the scope of the policy, in the real world, without additional funds, there was bound to be a de facto ban on Beta-Interferon treatment. This was well understood by everyone, and explains why the within-a-trial only policy was regarded as a blanket ban: see the press release dated 1st May 1996 and Dr McConville's memoranda of 29th May and 5th July.

44. If in practice the block contract sums would be able, subject to clinical judgment, to fund Beta-Interferon in appropriate cases, it is difficult to see why the respondents' within-a-trial-only policy generated the reaction that it did from the NHS Executive.

45. The fact is that the block contract sums had been agreed before the Circular was issued. Beta-Interferon is an expensive drug. The respondents would have known, or at least would not have been surprised, that it was the type of drug that would be red lined and would not be dispensed unless additional funding was provided. Thus when Mr Fewtrell wrote in his letter of 19th February 1996:

46. He must have known that, unless additional funds were made available, this was simply not true. No doubt that is why he said in his letter that he was:

47. Although the evidence does not disclose that any such discussions took place. The suggestion that Beta-Interferon treatment may be available within the block contract was impliedly repeated in the letter of 18th November 1996, viz:

48. Of course, they could not stop clinicians writing prescriptions, but the respondents knew that, at any rate within the Trust hospitals, those prescriptions would not be dispensed and treatment would not be given unless additional funds were made available. It is pointed out that one of the respondents' residents did in April 1996 receive Beta Interferon treatment from a hospital in Manchester. It is suggested that this shows that the respondents' policy did not amount to a blanket ban on Beta-Interferon treatment.

49. The evidence does not indicate how this patient came to receive the treatment. The respondents were clearly surprised and Dr McConville's note of 1st August 1996 says:

50. This single exceptional case concerning a different Trust does not persuade me that it was part of the respondents' policy that Beta-Interferon treatment should be given in appropriate cases funded by the sums available for neurological services generally within the block contracts.

51. Did the policy change in November 1996?

52. I have already referred to the evidence. The affidavit of Dr McConville is quite clear. There was a review of the policy following receipt of Dr Winyard's letter of 10th October and, for the reasons she gives, it was decided not to change the policy. Nor do I read paragraph 27 of Mr Fewtrell's affidavit as saying, in effect, that there was a change of policy. It would have been very surprising if he had said that the policy changed in November, because as the minutes of the meeting dated 19th November record:

53. Was the policy lawful?

54. Its lawfulness must be judged in accordance with Wednesbury principles against the background of national policy which was set out fully and firmly in the guidance to be found in the Circular. The respondents had to have regard to that national policy. They were not obliged to follow the policy, but if they decided to depart from it, they had to give clear reasons for so doing, and those reasons would have been susceptible to a Wednesbury challenge: see generally Grandston (supra). Moreover, if the respondents failed properly to understand the Circular, then their policy would be as defective as if no regard had to been paid to the policy at all. It is accepted on behalf of the respondents that they were under a duty to give serious consideration to each aspect of the Circular. Mr Seys Llewllyn submits that the respondent's policy was an honest and conscientious way of managing the introduction into the NHS of the new drug, and was at least consistent with the Circular.

55. In my judgment the policy was plainly not in accordance with the Circular. The Circular asked for purchasing authorities and providers:

56. One of the key aims was to "target the drug appropriately at patients who were most likely to benefit from treatment". In other words, the Circular was giving guidance as to how most effectively Beta-Interferon could be introduced into the NHS as a drug to be prescribed to treat patients. The primary aim of a trial is not to prescribe drugs in order to treat patients, but to test their efficacy. I do not consider that the respondents' policy could at any time have fairly been described as a reasonable way of giving effect to the Circular. The respondents, like others, no doubt honestly and conscientiously believed that the efficacy of Beta-Interferon had not been sufficiently tested. The assumption that underpinned the Circular was that it had been sufficiently tested. A possible outcome of a further trial would be to demonstrate that Beta-Interferon should cease to be a drug prescribed on the NHS. This merely serves to underline how far away the respondents' policy was from an implementation of the Circular. This is not a case in which a health authority departed from the national policy because there were special factors which it considered exceptionally justified departure. The respondents failed to implement any aspect of national policy, principally because they disagreed with it altogether. They now seek to argue that at least they acted consistently with that policy, although for the reasons that I have given that is plainly not the case. Accordingly, they do not seek to justify their policy as a rational exception to the national policy. That is hardy surprising, since I expect that the situation in which the respondent found themselves when the Circular was issued was not materially different from that faced by most other health authorities. The respondents did not take the Circular into account and decide exceptionally not to follow it. They decided to disregard it altogether throughout 1996, because they were opposed to it. That is something which in my judgment they were not entitled to do.

57. I conclude therefore that at no time was the policy a proper application of the Circular and that the respondents did not properly take it into consideration.

58. If I am wrong about that, then the policy became unlawful in about September 1996 when the respondents became aware that any trial had been postponed "indefinitely" (the Prime Minister's letter from 3rd September); or "for at least 18 months" (Dr McConville's report of 17th September). The matter was put beyond doubt by Dr Winyard's letter of 10th October which said that the trial had been postponed "indefinitely" so that, as he said, there was no longer any reason for delaying the introduction of policies in line with the Circular. The respondents' policy had, to use their own word, become well and truly "unsustainable". Once there was no trial in prospect, in truth the respondents had no policy at all in relation to the implementation of the Circular, and yet they continued to maintain this unsustainable position. For the reasons given earlier, reliance on the block contract sum was not a reasonable response to the Circular.

59. I must now return to the £50,000. On the material before me, £50,000 had been included in the ECR budget to neurologists specifically for Beta-Interferon: see Dr McConville's memorandum of 17th September. As I said earlier, Mr Seys Llewellyn told me on instructions that by November, when the estimated overspend for the year was put at £1,185,000, the £50,000 did not exist, because it had not been "ring fenced". Evidence as to the financial arrangements between the respondents and the Trust is almost non-existent. But what is clear is that Dr McConville swore an affidavit, on 29th May 1997 saying that "an alternative available to the respondent when it considered its policy in late October 1996 was to release the £50,000 allocated in the respondent's budget as part of the health investment programme". The affidavit of Mr Fewtrell which was sworn on the same day does not expressly deal with the £50,000, but in my view it is not inconsistent with the evidence of Dr McConville.

60. The fact that, in November 1996 it was estimated that at the end of the financial year the respondents would have over-spent by more than £1,000,000, is consistent with there being available at that time a sum of £50,000 for the ECR budget allocated specifically for Beta-Interferon.

61. I am bound to express surprise that the respondents' case on this important aspect of the dispute should have been dealt with in this unsatisfactory way. No explanation has been given as to why, if paragraph 15 of Dr McConville's affidavit was in error, the true position has not been explained in a further affidavit. I am not willing to accept what I have been told on instructions. I shall proceed on the basis of Dr McConville's affidavit, which is entirely consistent with the contemporary documents in relation to the existence of £50,000. The situation was therefore that part or all of the £50,000 could have been released to the Trust, so that the policy embodied in the Circular could have been implemented. That policy was to target Beta-Interferon appropriately by the exercise of clinical judgment, having regard to local resources. If that step had been taken, it is difficult to see on what basis the respondents could have been have criticised, save for the delay in taking it.

62. Why was this not done? The reason given by Dr McConville is that the money could only be allocated on a first-come-first-served basis, which was unfair, and that the respondents did not have the resources to enable a more equitable assessment of clinical need of patients across the whole North Derbyshire area to be carried out. I regard this as an irrational reason. If correct, it would be a reason for refusing to make any expensive treatment available in almost all circumstances. When deciding whether to prescribe treatment to a patient, a clinician has to have regard to many factors, including the resources available for that treatment and the needs of and likely benefit to that patient, as compared with other patients who are likely to be suitable for that treatment during the financial year.

63. It is absurd to suppose that, before any patient is prescribed any expensive treatment, a survey must be made of all patients who are, or might be, in need of the same treatment in the area. I do not accept that this was a rational justification for not releasing additional funds.

64. Indeed, I have considerable doubts as to whether it was the true reason. It is striking that this was not the reason given at the time. In the letter of 18th November 1996 a different reason was given. It was said that the respondents "could not identify any new money to give priority to the use of this drug". That was simply not true. They could identify new money, namely the £50,000 referred to by Dr McConville, but decided not to release it. It is implicit in the reasoning now advanced by Dr McConville in her affidavit that she accepts that funds were available at the time. Internally the respondents gave yet another reason. The minutes of the meeting of 19th November state that "as the clinicians had not accorded the patient priority for the use of Beta-Interferon within the existing contract they could not recommend a change of policy". I regret to say that I regard that this as disingenuous. The patient who was being referred to was, of course, the applicant. It has never been suggested that the reason why the applicant had not been accorded priority for the use of Beta-Interferon was because of an exercise of clinical judgment by the clinicians, and a refusal on their part to make use of the block contract sum for that purpose. I find it most surprising that this excuse, (for that it is what it was) was put forward by Dr McConville and Mr Fewtrell in justification of their inability to recommend a change of policy. I therefore reject each of the three reasons variously relied on in justification of the refusal to abandon the policy which had become admittedly unsustainable. None of them could reasonably be relied on.

65. Mr Seys Llewellyn emphasised two points. First the respondents were under a statutory duty not to overspend: see section 97(a) of the 1977 Act and the Department of Health Circular HC 91(25). Secondly, clinical decisions must always be taken with due regard to the resources available: see, for example, R -v- Cambridge Health Authority , [1995] 1 WLR 898. I unreservedly accept both propositions as correct. But on the facts of this case, they do not assist the respondents. The respondents had funds available, but chose not to allocate them. As for clinical decisions, they were not for the respondents to take, and it is no part of the applicant's case to suggest that they were.

66. I conclude therefore that the policy was unlawful because it was not a proper application of the guidance contained in the Circular, and the respondents did not properly take into account the essential requirements of the Circular in adopting and maintaining their policy. In my judgment, the respondents were aware from an early stage that they were not properly applying or taking account of the Circular. They knew that their own policy amounted to a blanket ban on Beta-Interferon treatment. A blanket ban was the very antithesis of national policy, whose aim was to target the drug appropriately at patients who were most likely to benefit from treatment. They knew from as early as 12th January 1996 that, if there was no imminent prospect of a trial, it might be difficult to "hold the line". Most revealingly of all, the note of the meeting of that date spoke about the possibility of "creative constraints". This is surprising language to find in the context of health care.

67. What they had in mind at this early stage was using the possibility of a trial as a creative means of avoiding the implementation of national policy. The reason was plainly that the respondents disagreed with that policy. I fear that "creative" is a euphemism for "disingenuous". The prospect of a trial served its purpose as a creative constraint until that prospect disappeared. Thereafter the respondents resorted to other unacceptable and inconsistent excuses in seeking to hold the line, and hang on to their unsustainable position. My conclusion on this issue, based on the reasons that I have given, is sufficient to dispose of this application, subject to questions of relief.

68. Mr Grace advanced a number of other arguments. These included the submission that since the respondents' policy involved a blanket ban, it amounted to an unlawful fetter of its discretion to make funds available for Beta-Interferon treatment. He also submitted that the respondents acted unfairly in writing the letter of 19th February 1996, which concealed the true nature of their policy, thereby denying the applicant the opportunity of making representations about the appropriateness of the policy, whether to the respondent, the department, ministers or others. This was and is a high profile case, and pressure might have been brought to bear if the applicant had known the true position.

69. I also heard arguments that the letter of 19th February 1996 gave rise to a substantive legitimate expectation that the question whether the applicant received Beta-Interferon treatment would be a clinical decision, made by neurologists at the specialist centre, taking into account the limited funds available; alternatively that the letter gave rise to a procedural legitimate expectation that, before the respondents decided to implement a policy which was materially different from that which was represented by the letter, they would give the applicant the opportunity to make representations as to why such a policy should not be implemented. Having regard to the clear conclusion that I have reached on the main Wednesbury unreasonableness point,

70. If I were satisfied that the respondents now had in place a policy which does reasonably apply national policy, I would not have been minded to grant relief. The present position however is far from clear. As I said earlier, the report of Dr McConville of 1st April 1997 refers to the fact that the 1997/1998 contract includes a statement in relation to Beta-Interferon that the respondents will consider "special cases" as ECRs, but that the position reflects an impasse, is probably not sustainable and is out of line with other purchasers who appear to have allocated a budget for Beta-Interferon to the providers.

71. It is not clear what is meant by "special cases" or why Dr McConville is of the view there is an impasse. As for what Mr Seys Llewellyn told me about an agreement "in principle" between the respondents and the Trust that the 1997/1998 block contract sum for neurological services generally will be increased by £40,000, I would comment that this is not evidenced by any affidavit still less by any document. For that reason alone, given the unfortunate history of this matter, it would, in my view, be quite wrong to refuse relief merely on the basis of what I have been told.

72. In my judgment the appropriate relief to give effect to my judgment is:

73. Mr Grace submits that I should also order that the applicant's case be reconsidered in the light of the lawful policy that will be implemented by the respondents. I do not consider that it is appropriate to make such an order, since it would lie against the Trust who are not parties to this application. However I have no reason whatsoever to doubt that if, as I would expect, the respondents fall into line with the other North Trent purchasers and allocate to the Trust a budget for Beta-Interferon, then the applicant's case will be reconsidered, and that subject to clinical judgment and availability of resources he will receive the treatment.

74. MR GRACE QC: My Lord, I ask for orders accordingly. May I raise one matter which relates to the third item of relief which your Lordship indicated was appropriate that is the question of timing. Your Lordship is of course aware there has been a history now for some 18 months the applicant has been waiting for the treatment and whether, as I indicated earlier during the course of the hearing, the applicant will be fit for the treatment or would still be an eligible candidate for the treatment remains unclear, because his condition has now deteriorated and that is a matter in the conscious of the individuals who made the decision in question.

75. The point really is though that we want some constraint upon the authority to make its decision under paragraph 3, by your Lordship's order of mandamus, within a relatively short time since there is no further delay since the applicant can be further assessed to see if he is suitable for that treatment. In view of the very extensive delay that has already occurred we would ask that that be no more than 14 days from today. I do not whether ------

76. MR JUSTICE DYSON: I certainly would want to hear from him before I impose any time limit.

77. MR GRACE QC: Otherwise we fear that the history that has gone before and which has been outlined gives us good cause to fear that matters will drag on and on.

78. MR JUSTICE DYSON: Yes. Is there any other application?

79. MR GRACE QC: Costs. We ask for costs against the respondent. The applicant is legally aided.

80. MR JUSTICE DYSON: Is this against the first respondent?

81. MR GRACE QC: Against the health authority, yes. And legal aid taxation.

82. MR SEYS LLEWELLYN: So far as time is concerned in any event it would be the intention of the authority to consider and will consider in accordance with your Lordship's judgment urgently. Whether or not it is really necessary or reassuring to set a time limit is a matter entirely for your Lordship.

83. MR JUSTICE DYSON: I think in view of the history of this case I would like to set a time limit, I want it to be one that is realistic, but I do say this: your clients have had a very long time to think about these issues, they know their financial position so at the moment I cannot see why it should take very long at all.

84. MR SEYS LLEWELLYN: On instructions I do not disagree with any of that.

85. MR JUSTICE DYSON: Then I will amend what I propose in relation to the third limb of the relief by saying: requiring the respondents within 14 days.

86. MR JUSTICE DYSON: Costs. Anything to say about costs?

87. MR SEYS LLEWELLYN: It is entirely within the discretion of the court. The authority, of course, has and will have acute regard not only to the end point of your Lordship's judgment but that which has been said if the course of it, but having said that I hope that there maybe at least some sympathy with the difficulties which authorities in general face in seeking to apply guidance and to balance these difficult matters of resources. Of course, if it is right otherwise that there should be some order, but the fact that it will come out of the funds that will go to service those who have need of care is by the by, it is of course always in these cases the effect, so I would ask, my Lord, in short to consider very long before making an order for costs in this case and almost pragmatic grounds in the interests of health care and generally I would ask your Lordship not to make an order.

88. MR JUSTICE DYSON: I am afraid that I think it is a case where your clients will have to pay the costs. I am conscious of the consequences but I think that properly reflects my view of the litigation. Although in general I am sympathetic to the difficulties in which health authorities find themselves with having to deal with limited resources I emphasis the word general.

89. MR SEYS LLEWELLYN: My Lord, thank you.

90. MR JUSTICE DYSON: Mr Elvin, do you wish to add anything?

91. MR ELVIN: My Lord, I have no application.