Abstract/Summary

Where health care commissioners decide, as a general policy, that they will not generally fund a particular medical treatment or intervention (or will restrict its availability to those meeting certain criteria) individual patients, denied under the policy, can ask for an exception to be made. This is generally done by means of an Individual Funding Request (‘IFR’) whereby the patient, typically with the support of their medical team, can make a case for individual funding on the basis that there are significant and relevant differences between their circumstances and those of other patients who might need or want the treatment in question. The approach of health care commissioners to deciding on IFRs is normally to take into account clinical factors only - policies tend to make clear that they will not take into account ‘social factors,’ including personal characteristics such as race, sex, age, religion, disability and sexual orientation, in deciding whether or not to make an exception – because of a desire to avoid discrimination and to treat patients fairly. This article explores the way equality law might bear on decisions to make exceptions to funding policies. It identifies, as far as is possible, the circumstances under which equality law will permit or will require the personal characteristics of patients to be taken into account in order to avoid discrimination and to treat patients fairly. It also highlights a number of challenges the equality law framework presents for commissioners in making decisions about how to allocate scarce resources.