A WOMAN cancer patient is taking a landmark legal action against the National Health Service for withdrawing treatment because she has chosen to pay for a drug that the NHS does not fund.

Sue Bentley, a potter, has had her NHS care withdrawn after paying privately for the drug Avastin to increase her chance of fighting lung cancer.

The legal action will put pressure on the government to change its policy of penalising patients who try to improve their chances of survival by buying additional drugs.

An inquiry into the scandal, to be published at the end of October, is widely expected to propose that patients should be allowed to pay for additional drugs without losing their NHS care. Ministers will then consider changing the rules but patients such as Bentley say they do not have time to wait.

Bentley, 67, from Monmouthshire, who was diagnosed with the disease last December, said: “We were told there was no way we would be allowed to top up and that we would need to opt out of the NHS and pay for everything.

“It is quite frightening because, if I become ill, I know that we will need to pay up to £450 a day for me to go into hospital, as well as all the treatment costs.”

In addition to the Avastin, Bentley is also receiving two other drugs, cisplatin and gemcitabine, which are normally available on the NHS. She is now being charged for these drugs which are free to other NHS patients.

She added: “Everyone else is getting the cisplatin and the gemcitabine for free. I am sitting beside them and I am being billed. It is horrendous.”

Bentley will challenge in court the decision by her hospital, Velindre NHS Trust, Cardiff, to refuse to allow her to pay for an additional drug without losing her NHS care.

In previous legal challenges, the NHS has capitulated either by agreeing to fund the additional drug or by the hospital allowing co-payment. This is unlikely to happen in Bentley’s case.

Bentley’s solicitor, Melissa Worth, of Halliwells, the Manchester-based law firm, has a QC’s opinion stating that the NHS has no legal right to prevent Bentley paying for a private drug while continuing to receive her state-funded care.

Worth said: “Ms Bentley has paid for her NHS care through insurance contributions and there is no bar to a patient purchasing a drug not ordinarily available on the NHS, bringing that to a hospital and having the NHS administer that drug.

“These patients are not taking anything away from the NHS.”

Halliwells is not charging Bentley for its representation. Doctors for Reform, a group of 1,000 doctors, has a £35,000 fighting fund to pay any legal costs awarded to the NHS if Bentley loses her case.

Bentley’s companion of 24 years, Steve Rogers, 52, a conservationist, has paid for Avastin, which costs about £3,300 a month, from savings. He found trials on the internet showing that patients who add Avastin to their treatment are more likely to see their tumours shrink and will increase the time before their cancer returns.

The couple must also pay for the cost of the chemotherapy drugs, which would otherwise have been available to Bentley on the NHS, and the charges for administering them. Bentley’s oncologist, who is backing their decision to pay for Avastin, has waived his fees.

Velindre NHS Trust defended its decision to withdraw NHS care. Malcolm Adams, medical director, said: “Velindre’s policy is that patients cannot switch between NHS and private healthcare within a particular treatment episode.

“The Trust awaits the outcome of this \[Department of<NO> Health\] review with considerable interest.”

- If you have been affected by NHS drug rationing, please e-mail health@sunday-times.co.uk

Tory pledges

THE Conservatives have backed the right of patients to “top up” National Health Service care by buying treatment at private hospitals.

Andrew Lansley, the shadow health secretary, said the party would reverse the policy of denying NHS care to those who buy treatment that it does not provide.

He said it was wrong to withdraw state-funded care from patients such as Linda O’Boyle, who died of cancer in March after being denied NHS treatment because she bought a drug. The Tories will allow top-up treatment as long as it is carried out away from NHS premises.

Lansley said: “It is clearly wrong that any patient should be denied access to NHS treatment. Access to private treatment should not affect entitlement to NHS care.”

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