IMMUNOTHERAPY COSTS: FINDING THE RIGHT REMEDY IN MEDICINE AND LAW?

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The proposition that a defendant or insurer liable for terminal illness should pay reasonable treatment costs which have a prospect of improving the victim’s length or quality of life would appear to be an unlikely source of controversy.  However, it is a testament to the enduring ability of mesothelioma claims to create forensic controversy that there is significant ongoing debate as to the best approach to a claim for immunotherapy costs.

The promising results of immunotherapy treatment have been a welcome success in the treatment of cancer and not just mesothelioma. It is likely that in the foreseeable future, additional immunotherapy treatments will be licensed on the NHS. In the meantime, the drugs are available on the private market but at a very considerable cost.

Innovative treatments in mesothelioma claims are not new, with claims for both chemotherapy and immunotherapy drugs at different points in time.  The reasonable requirement for proof of efficacy before acceptance by NICE inevitably creates a situation in which drugs are being used but not available on the NHS.  What perhaps has changed in recent months is that previously such claims were made in circumstances in which the victim was already undergoing private drug therapy or at least was being recommended for the same.  There has now developed an approach of advancing immunotherapy claims in seemingly every living mesothelioma claim, often with no concrete evidence of the likelihood of the treatment. Therefore the claim is being advanced on what is not unfairly described as a wholly speculative basis. This is against a background where claimants’ solicitors appear to be advertising the ability to pursue such claims on their websites which inevitably is putting pressure on all firms advising claimants to offer the same.  Medical reports are served simply describing the availability of such treatment and indicating that the claimant in question may ultimately be suitable for treatment.

Understandably, insurers have been reluctant to date to contest such a claim in court in particular given the emotive nature of the claim and the undoubted acceptance that if the claimant is suitable, with the treatment being recommended, then the cost of it will reasonably be paid by the defendant.  However, it is reasonable in terms of assessing how such claims should be managed to consider what likely order a court could make should a claim be contested at assessment of damages.  The following alternatives appear to be relevant:

  1. The court could make an order for immediate damages on the basis of the cost of future treatment. This would be on a contingent basis as reflected by the approach of Sir Robert Nelson in the case of XX v Whittington Hospitals[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2017] EWHC 2318 (QB).  In that case, faced with a long list of possible future treatments for a claimant, Sir Robert Nelson considered in relation to each aspect of the treatment whether and to what extent the same would likely result in loss by way of expenditure to the claimant. In undertaking this exercise, the judge had regard to the availability of such treatment on the NHS. He took into account that if equivalent treatment were available on the NHS, the claimant would have been unlikely to elect to incur the cost of private treatment. This was essentially a contingent approach.  However, there appears to be a fundamental objection to such an approach in immunotherapy claims as now being presented which is that the prospect of the same is so speculative that it cannot form the basis of loss. This is evidenced by the fact that the court could not make any realistic assessment of the likelihood of the claimant requiring treatment or the cost of the same. The legal test which correlates ‘substantial’ with ‘capable of evaluation’ was succinctly stated by Lord Reid in Davies v Taylor [1974] A.C. 207at 212: “To my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than “substantial,” on the one hand, or “speculative” on the other.” From a defendant’s perspective, assessment on a contingent basis would be very unsatisfactory as it would almost inevitably result, in many cases, in a significant over-compensation of the claimant.  It can be anticipated that in most cases of this nature the claimant will not in fact proceed to immunotherapy. The claimant may die before the treatment is considered. When the treatment is considered the claimant may not be in a fit state to receive it. The treatment may simply not be recommended in his case by a treating clinician.  Whilst the defendants would have good legal reasons for resisting an award, the risks in relation to the same are evident given the courts’ expected reluctance to undercompensate a claimant for life prolonging treatment.
  2. The court could be invited to make an order for the payment of damages by periodical payments. Such orders have been the subject of consent, but there is no indication that such an order has been made at a contested hearing. Considering the court’s powers to make an award for periodical payments, it is apparent that immunotherapy claims will not fit within the relevant framework. Periodical payments still involve an assessment of the relevant head of loss but provide an alternative by way of paying the damages through regular payments as opposed to on a ‘once and for all’ basis.  However, under the Damages Act 1996, the amount of the payments must be fixed, as must be the intervals of payment.  In the case of AA v CC (2013) EWHC 3679 (QB), the court confirmed that payments could not be made on the basis of uncertain dates.  Whilst variation of a periodical payment is possible, only one such application can be made. There are therefore good grounds for resisting any application for damages to be paid by way of periodical payments.  In reality, the orders which have been agreed to date are indemnities by another name.
  3. An indemnity in respect of future costs seems the most obvious and indeed attractive solution for all parties.It appears to be accepted that a court cannot in a personal injury action order an indemnity as a form of relief. However, it is not clear how and why this consensus has emerged. An indemnity is established as a remedy in the Chancery Division. With the Judicature Acts 1873 and 1875 fusing the courts of equity and law together, remedies that were formerly available in only one could now be pursued in any action. The basis upon which an indemnity cannot be awarded as a remedy in a personal injury action appears therefore to be simply that it has not been done so to date.[1]Despite the questionable consensus on the court’s inability to order an indemnity without consent, it is of course appropriate and indeed, in most cases, the best approach for a defendant to make an offer of an indemnity.  The issue here from a defendant’s perspective is to ensure that the terms of the indemnity reasonably protect the defendant’s interests, in particular in relation to the reasonableness of treatment.  The usual requirements would be for the claimant to be assessed as being fit for such treatment, that the same is assessed by an appropriate consultant as having at least some reasonable prospect of success, and that the progress of the treatment is subject to regular review.  Whilst claimants may be resistant to such terms being incorporated into an agreed indemnity, the same do reasonably reflect the legal entitlement to the cost of future treatment.  It does not appear there is at present any alternative market for immunotherapy drugs. There have however been examples in mesothelioma litigation of experimental treatments or surgery, in particular in the United States of America. Where no reasonable prospect of benefit from such treatment or surgery can be demonstrated, defendants have reasonably objected to paying for the same.
  4. If a reasonable indemnity can be agreed, then the rest of the action can be dealt with either by agreement as to all other heads or by the continuance of interim payments until the treatment has been ruled out or concluded. Given that practically all mesothelioma claims settle on quantum and given that there is economic advantage usually in settling with a living claimant, defendants would be best advised to proceed on the basis of an agreed award with an additional indemnity.

The question that can now be reasonably be asked is that if a defendant offers an indemnity but a claimant refuses to accept it, whether the defendant should seek to defend the claim in accordance with the position as set out above in relation to contingent damages and periodical payments.  Accepting that there is an element of risk in such an approach, if the indemnity is thought to be appropriate and consistent with the legal basis of assessment for future loss, then there would be clear advantage to defendants and insurers in establishing a position where a claimant would have to accept such an indemnity as opposed to proceeding to attempting to achieve some remedy through the court. The defendant’s arguments as to the inappropriateness of contingent damages and periodical payments would of course be much more attractive in the context of an offer of an apparently reasonable indemnity.  Indeed against this background, it could be argued that the claimant in fact suffers no prospect of future loss given the offer of indemnity.

In any event, it is clearly in the interests of all victims for a simple and common sense approach to be taken to this issue as opposed to introducing unnecessary complication which can only serve to increase legal costs and cause delay.

[1]As A. P. Herbert’s Lord Mildew astutely observed in ‘Doggett v. Port of London Authority’: “There is no precedent for anything until it is done for the first time.”[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Supermarket Mental Patient!

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Case Background

Today’s press coverage of a well known supermarket selling a costume of a blood soaked mad man and labelling it a “mental patient” is a good example of the difficulties businesses face when dealing with mental health. Mental health problems still carry stigma and businesses find it increasingly difficult to know how to manage staff with mental health issues whilst trying to run a viable business.

Contributor Notes

Anyone that represents businesses in the Employment Tribunal knows how many problems are created when a claimant appears in person. A claimant in person usually has a limited understanding as to what is expected of them in the Tribunal and can turn up on the day of the hearing with new witnesses; without witness statements; with new documents; or seeking permission to rely upon that evidence.

Whilst experienced litigators know how to tackle such problems, there are occasions when even the most experienced are pushed to the limit. I have appeared before Employment Tribunals for over 14 years but in 2011, and into 2012, my skills as a litigator were tested to the limit.

The case involved a former employee of a NHS Trust who had been dismissed by reason of capacity. The claimant had spent many years being moved from one job to another in an attempt to accommodate an apparently growing mental health problem. The facts of the case, therefore, spanned several years. The claimant raised allegations covering those years and, as a claimant in person, the metaphorical kitchen sink was thrown in. This approach only increased the cost to the Trust at a time when public funds would have been better served saving lives.

The respondent Trust had to address those issues through witness evidence which meant that there were a significant number of witnesses.

The hearing took place over three weeks; split between 2011 and reconvened in 2012 because the claimant’s health problems caused a long adjournment.

So why was this case different than any other? First, the claimant took over ten minutes to ask each and every question or to make a note of an answer; even if the answer was a simple ‘yes’ or ‘no’.

Second, the claimant became aggressive and made inappropriate comments when questioning witnesses and this caused great upset to those witnesses.

Third, the claimant took constant breaks and made multiple daily unmeritorious applications which meant the hearing had to stop so the Tribunal could hear each and every application. This required my response and then a Tribunal decision. This caused significant delay and further distress to the witnesses.

Why did the Tribunal accommodate such behaviour and why did I not object? The difficulty in this case was that it was almost impossible to differentiate between unacceptable behaviour and behaviour linked to the claimant’s mental health problems. The case highlighted the tight rope all organisations face in trying to manage mental health whilst not tolerating poor behaviour and protecting other staff.

The Tribunal and I were both concerned to ensure the claimant had a fair hearing and so, absent clear evidence as to what was part of the behaviour was linked to the claimant’s mental health and what was just an example of poor behaviour, there was little choice but to accommodate the behaviour. That was extremely difficult as an advocate as I had to make many decisions during the hearing as to matters I would take issue with and those I would not because of the claimant’s mental health. It was a difficult balancing act which caused significant frustration to all involved. I have no doubt that in inexperienced hands the case had potential to go disastrously wrong. Not because the respondents had done anything wrong but because when cases are handled badly by advocates in a hearing setting it can set the case, and the Tribunal, off on the wrong footing and that tends to be the beginning of the end.

After three testing weeks of long pauses, interruptions and aggression the Tribunal finally heard all of the evidence. The result? The Tribunal produced a 50 page judgment unanimously in favour of the Trust.

Was this a victory? Yes and No. No, because the case had cost the Trust; the costs were paid through public funds and the witnesses’ distress was unacceptable. Yes, because the Trust had behaved impeccably and as a result of careful handling the Tribunal vindicated that in the judgment.

Mrs Harrison v St Helens Borough Council

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Case Background

The Claimant was employed as a Curriculum and Support Manager in the 14-19 team of the Children and Young People’s services department (CYPS). She commenced a period of maternity leave and was still on maternity leave when she was dismissed the following year. Whilst the Claimant was on maternity leave the Respondent re-structured the CYPS, which involved the replacement of the existing staff structure with a new one.

The Respondent used a process of assimilation and ring-fencing to put some staff members in posts within the new structure and made others compulsorily redundant. The Claimant was ring-fenced for a teaching position, which the Respondent conceded was not a suitable alternative vacancy pursuant to Regulation 10 of the Maternity and Parental Leave Regulations 1999 (the ‘Regulations’). As such, when she declined to take up the position she was made redundant. Throughout the restructure and redundancy process there was little consultation. Despite this the Claimant, through her trade union, sought to bring to the Respondent’s attention that whilst her job had been displaced under the new structure she was capable of performing some of the new roles and that, in accordance with the Regulations, she should be given one of these roles in preference to other employees.

The Respondent took the view that these new roles were never available or vacant as there had been assimilation/ring-fencing for employees whose positions were materially identical or closely matched to their old posts. This led to the Respondent’s belief that there was no requirement to consider the Claimant for the roles. In the alternative they sought to argue that the Claimant would not have been suitable for these roles and/or that other employees were more suitable for the roles. The Claimant’s claim consisted of a claim for automatic unfair dismissal and sex discrimination.

The key issues for the tribunal to determine were: 1) did any of these roles constitute vacancies; and 2) if they were vacancies, were they suitable for the Claimant. The tribunal found that it was clear that the Respondent knew that the Claimant’s existing post was to be dispensed with and that she was at risk of redundancy before they made decisions about allocation of posts in the new structure, including the posts in issue. As such, there were vacancies and the Claimant should have been considered ahead of other employees who were not afforded protection under the Regulations. Whilst other employees may have been more suitable for the roles this was not test under the Regulations. The fact of the matter was that the Claimant would have been suitable for two of the roles. Further there had been a failure to consult, part of which was due to the Respondent taking a conscious decision not to involve the Claimant as she was on maternity leave. The Claims of automatic unfair dismissal and sex discrimination succeeded.

Contributors Comments

This case is of particular importance given that many local authorities use assimilation and ring-fencing in redundancy situations. Despite their frequency there are little, if any, reported decisions looking at whether this is a fair mechanism. The reasoning behind the finding that there were vacancies before the assimilation/ring-fencing process took place is relevant to cases involving ordinary unfair dismissal (in particular where there is a failure to consult) and potentially as regards the need to make reasonable adjustments. The case also provides assistance in relation to considering whether a vacancy is suitable where suitability was not considered by the Employer at the time. The tribunal stated as follows:

‘The Respondent now says that it does not consider that the vacancies were suitable, and refers us to the case of Simpson v Endsleigh Insurance as authority for the proposition that it is for the employer to decide whether or not a vacancy is suitable… we are therefore invited to accept the Respondent’s ex post facto assessment as to suitability. As there is no contemporaneous decision as to the suitability of the posts for the Tribunal to review the Tribunal can only, therefore, make its own objective assessment of the matter-taking account, of course, of the Respondent’s ex post facto views.’

The proposition to be taken from this case is that ring-fencing/assimilation is not necessarily an easy shortcut through the redundancy process and that further consideration and consultation will be required in most situations.