A WOMAN fighting for the right to life-saving drugs told a court yesterday that she had been left “waiting on death row” by her NHS trust.

Swindon Primary Care Trust (PCT) has refused Ann Marie Rogers, 54, funding for the breast cancer drug Herceptin, said to reduce the rate of recurrence by 50 per cent.

In a statement Mrs Rogers, who has had the aggressive HER2 form of the cancer, told the High Court that her oncologist had recommended the cancer-busting treatment, which costs more than £21,000 a patient a year.

But she told Mr Justice Bean: “I feel the refusal of Herceptin is as though I have been given a punishment like a death sentence. With my prognosis, waiting for the cancer to return is like waiting on death row.

“I know that if it comes back it will be terminal. I am pretty confident that without this treatment the cancer will return. This is based on my family history and the information I have been given about my cancer being such an aggressive form.” Mrs Rogers, a divorcée and mother of three, has borrowed £5,000 for treatment with the drug so far, but says that she cannot afford to fund further courses.

In a case with implications for many patients, Ian Wise, her counsel, asked the judge to declare “arbitrary and unlawful” the trust’s policy of providing Herceptin only in exceptional cases — “a policy made on the hoof”, he said.

Mrs Rogers, who ran the restaurant side of her sister’s public house until overtaken by the illness, first noticed a lump on a breast in October 2004.

She saw her GP the next day and quickly received a mammogram appointment at Great Western Hospital in Swindon. Biopsies revealed invasive carcinoma and in January last year she had a mastectomy, breast reconstruction and auxiliary surgery.

Gruelling chemotherapy and radiotherapy followed. Her son then discovered on the internet that the HER2 cancer could be treated by Herceptin.

Mrs Rogers asked her consultant, David Cole, if she could be tested for the aggressive form of the illness and on June 30 last year she was found to be positive. Her fight for the right to the drug is the first to reach the courts.

Last year Barbara Clarke, 49, a nurse, and Elaine Barber, 41, threatened to take Somerset Coast PCT and North Stoke PCT respectively to court but both trusts backed down and agreed to supply the drug.

At a hearing in December, Mr Justice Charles ruled in the High Court that Mrs Rogers had an arguable case that merited a full hearing. He ordered the trust to continue her treatment with the drug pending the full and urgent hearing, which began yesterday.

Mr Wise told the court that the trust’s policy of restricting the use of the drug to exceptional cases was contrary to a direction from Patricia Hewitt, the Health Secretary, and was “arbitrary, unlawful and irrational”.

He said that it also breached the patient’s right to life under Article 2 of the European Convention on Human Rights, and the right to respect for her private life under Article 8. The hearing continues today.

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