A WOMAN with an aggressive form of breast cancer has lost her High Court battle to receive the so-called wonder drug Herceptin on the NHS.

Ann Marie Rogers, 54, had told the court that the refusal of Swindon Primary Care Trust, in Wiltshire, to fund her £21,000- a-year treatment amounted to a “death sentence”. But although Mr Justice Bean expressed sympathy yesterday for her plight, he said that the issue was a matter for political debate, not for a judge.

He ruled that the Swindon trust’s policy of providing the drug only in “exceptional” circumstances was not unlawful, but he granted Ms Rogers leave to appeal.

She would be able to continue receiving Herceptin treatment free of charge until the case was heard, he added.Ms Rogers shook her head and looked down when the judgment was announced.

Outside the court Yogi Amin, her solicitor, said that his client was devastated and angry. Ms Rogers had endured an “emotional rollercoaster” since she first noticed a lump on her breast in October 2004, including a mastectomy, chemotherapy and radiotherapy. Her local NHS trust’s refusal to fund a course of Herceptin, despite encouraging medical tests, had forced her into this course of action, he said. “She did not want to come to court but she is fighting for her life.”

Mr Amin appealed to Patricia Hewitt to address the postcode lottery, in which some NHS trusts prescribed Herceptin and others did not, by issuing clear directions to trusts. The Secretary of State has ordered Herceptin’s licensing process to be fast-tracked, meaning that “the hopes of hundreds of breast cancer sufferers have been built up”.

At present Herceptin is licensed to treat late-stage breast cancer but it is awaiting approval from the European Medicines Agency and the National Institute for Health and Clinical Excellence for the treatment of early-stage breast cancer, which Ms Rogers has.

Mr Justice Bean noted in his judgment that medical opinion on the drug was “not yet unanimous”. He added that “the system of licensing and appraisal of drug treatments is essential and should not be bypassed”.

Ms Rogers, who has three adult children and used to run the restaurant side of her sister’s public house, is the first woman to take her fight for Herceptin to the courts. She was supported yesterday by five women from Staffordshire who won the right to be treated with the drug without going to court.

One of them, Lynne Burton, 56, said: “I can’t believe what’s happened in there. It’s all very well to say that by the end of the year it (Herceptin) could be licensed, but that’s probably too late for Anne Marie and a lot of women like her.”

The charity CancerBACUP estimates that 1,000 breast cancer patients across the country are denied access to the drug.

The Department of Health said that trusts would continue to decide at a local level when to supply Herceptin. A decision on general use would be taken once Herceptin was licensed.

Andrew Lansley, the Shadow Health Secretary, said the ruling meant a postcode lottery in the prescribing of Herceptin. “The only way for this question to be resolved is for there to be a national appraisal for the clinical basis for the prescribing of Herceptin for early-stage breast cancer.”

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DISPUTED DRUG

• Herceptin treats the aggressive HER2 cancer, which a fifth of breast cancer sufferers have
• Supporters of the drug argue that it can double the chance of survival from this form of cancer
• Critics caution that its side effects, including cardiac risks, need to be properly understood before it is licensed for early-stage use

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