The case is believed to be the first in which a patient has used the Human Rights Act in an attempt to force the National Health Service to prescribe a life-saving drug.

Lawyers for Barbara Clark have given Somerset Coast primary care trust 14 days to agree to prescribe her Herceptin, the new “magic bullet” cancer drug used by early breast cancer sufferers such as Kylie Minogue, the singer.

The trust has not yet formally replied but it has little choice but to refuse because the drug is not licensed for such cases in Britain.

When this happens the 49-year-old children’s nurse intends to use the Human Rights Act to claim the NHS is denying her the right to life.

The test case could have wide-ranging implications and, if Clark wins, may cost the NHS millions of pounds.

“We don’t expect them to change their minds. If they did it would open a floodgate,” said Clark. “We expect this to go all the way to the High Court.”

Clark, who has an 11-year-old terminally ill foster son, has been told by her consultant that she could be dead within months unless she takes Herceptin.

She is trying to raise £40,000 to pay for a course of the drug.

Clark was diagnosed with breast cancer in February, and has been told that to have a chance of life she would have to start a course of Herceptin within the next two months.

A court victory would pave the way for hundreds of similar claims and place in doubt the role of the National Institute for Clinical Excellence (Nice) which is supposed to approve new drugs. Nice is conducting a review of Herceptin.

Patricia Hewitt, the health secretary, personally intervened and insisted the drug was fast-tracked by Nice, but approval is thought to be still 12 months away.

Clark, who lives in Bridgwater, Somerset, believes she will be dead long before the drug is licensed by the NHS. Even once licensed, there is no guarantee NHS trusts will be willing to pay for the expensive treatment.

At present Herceptin is available only to women in England with advanced cancer. However, three trials have shown the drug is highly effective in women newly diagnosed with breast cancer.

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