English cancer patients should rent a second home in Scotland to gain access to drugs not available in England, an expert on NHS law suggested yesterday.

Anybody who “resides ordinarily” in Scotland is entitled to the drugs free, said Nigel Giffin, QC. Establishing residence could be as simple as renting a flat north of the Border while retaining a home in England. The NHS in Scotland would be obliged to treat such a person after even a short period of “residence” at a possible cost of more than £10,000 a year.

Mr Giffin was asked by the Western Provident Association, a private medical insurer, to give advice on the law.

WPA lists 20 drugs, mainly for cancer, that have been approved by the Scottish Medicines Consortium but have not been cleared by the National Institute for Health and Clinical Excellence (NICE) in England and Wales. Some have been rejected by NICE, while others await a ruling.

Mr Giffin said that the law did not exclude from treatment in Scotland people such as the Prime Minister, who has two residences. He told a meeting in London that case law indicated that an individual could establish ordinary residence in Scotland “even if he only intended to remain for a limited period, provided that he had a settled purpose in doing so”.

Such a settled purpose could even include going there solely to get a course of treatment, he said, citing a ruling by the late Lord Scarman.

On this logic, he said, it was difficult to see how a person going to Scotland for treatment could not be said to be ordinarily resident, “provided his presence was reasonably continuous and the duration of treatment likely to be appreciable”.

Ordinary residence could be acquired very quickly – almost overnight if a person moved his possessions into a new home. Mr Giffin said: “If we see an increasing divergence in services, it might be worth acquiring ordinary residence in Scotland.” He also said that he could see no legal barrier to patients denied access to drugs in England buying them for themselves and insisting that they be used as part of a course of treatment.

Some primary care trusts, and some doctors, have refused to allow patients to do this, arguing that if treatment is to be on the NHS, all elements of that treatment must be paid for by the NHS. Mr Giffin said he could find no evidence in law or in directions from any health secretary to justify this.

“Some PCTs have the feeling that it is not right for some patients to get treatment others can’t,” he said. “I don’t think that stands up. It’s certainly not in the NHS Act, and if some direction from a secretary of state is lurking somewhere, I’m unaware of it. So you can top up, because an objection in principle is not legally sustainable.”

WPA has introduced a policy that allows people to insure against the possible future cost of cancer drugs.

The charity CancerBackup said that WPA’s list included drugs that were widely available in England, even though they had not been considered by NICE. It added: “There are problems with postcode prescribing, which are in large degree differences within England, rather than between England and Scotland.”

Richard Davidson, of Cancer Research UK, said: “Renting a flat in Scotland will by no means guarantee access to drugs that aren’t available in England.”

Among the drugs listed by WPA are Erbitux for colorectal cancer and head and neck cancer, Sprycel for chronic myeloid leukaemia, Alimta for mesothelioma, and two drugs to treat the wet form of macular degeneration, Macugen and Lucentis.

WPA carried out polls that showed that more than nine out of ten people thought it unacceptable that those in some parts of Britain were able to get drugs on the NHS while others were not. Nine out of ten MPs of ninety-seven polled agreed.

NHS Scotland confirmed that enti-tlement to NHS care was based on residency status. And guidance issued by the Scottish Executive said that anyone taking up permanent residence was “exempt from NHS charges from arrival in the country”.

It suggests that anybody spending less than six months a year there would be defined as a visitor. But Mr Giffin said that the test would be whether a person was in “a settled abode”.

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