CANCER patients have launched a legal action to prevent the NHS from withdrawing care if they seek to improve their chances of recovery by paying privately for an additional drug.

The patients say the NHS will be breaching their human rights if it withdraws the treatment they are receiving.

Two of the patients, Colette Mills, 58, a former nurse from near Stokesley, North Yorkshire, and Debbie Hirst, 56, from St Ives, Cornwall, who both have breast cancer, have been told they will be made to foot the entire £10,000 monthly bill for their care if they attempt to pay privately for an additional drug, Avastin.

Ministers claim that to allow patients to pay for top-up drugs would be unfair to those who cannot afford them and lead to a two-tier NHS. The health department has issued guidance to NHS trusts warning that such co-payments are not allowed.

However, the patients’ solicitor, Melissa Worth of the Manchester law firm Halliwells, said NHS trusts would be breaching several articles of the 1998 Human Rights Act if they withdrew chemotherapy treatment. Worth also argued that in withdrawing treatment NHS trusts would undermine the National Health Service Act of 1977.

She said: “In light of the indisputable obligations of the trusts to provide life-sustaining treatment when there is a known, real and immediate risk to life, there is no legal justification for the trust threatening to withdraw all free treatment should our clients wish to maximise their chances of survival by complementing the treatment they are receiving by receiving Avastin.”

NHS chief executives, the Patients Association, Doctors for Reform and Saga, the organisation for the overfifties, have all backed Mills and Hirst since The Sunday Times highlighted their plight last month.

This weekend they were joined by one of Britain’s leading breast cancer consultants. Professor Ian Smith, head of the breast cancer unit at the Royal Marsden NHS Foundation Trust, said: “I am very sympathetic to the case of these patients. We are looking after patients with life-threaten-ing diseases and it is difficult enough telling them they cannot get the drug on the NHS without needing to then say: ‘Even if you are prepared to pay for it, you still cannot have it.’ This creates a very emotionally fraught situation and seems very harsh.”

Politicians have also pledged to campaign for a change in policy. John Baron, a Conservative MP and former shadow health minister, said: “It is absolutely wrong for the NHS not to allow tax-paying patients to top up their treatment if they so wish. Why shouldn’t patients make that extra payment for a drug that could be life-saving? This is unfair and the government should be ashamed.”

The health department said: “It is a fundamental principle of the NHS, supported by all the main political parties, that treatment should be free at the point of need. Co-payments would undermine this.”

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