In my judgment Mr Elvin and Mr Seys Llewellyn are right. If the Circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities would be to take it into account in the discharge of their functions. They would be susceptible to challenge only on Wednesbury principles if they failed to consider the Circular, or they misconstrued or misapplied it whether deliberately or negligently: see Grandsden & Co Ltd and Another v Secretary of State for the Environment and Another (1985) 54 P&CR 86, 93–94.

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Mr Seys Llewellyn emphasised two points. First the respondents were under a statutory duty not to overspend: see section 97(1)(a) of the 1977 Act and the Department of Health Circular HC(91)25. Secondly, clinical decisions must always be taken with due regard to the resources available: see, for example, R v Cambridge Health Authority [1995] 1 WLR 898. I unreservedly accept both propositions as correct. But on the facts of this case, they do not assist the respondents. The respondents had funds available, but chose not to allocate them. As for clinical decisions, they were not for the respondents to take, and it is no part of the applicant’s case to suggest that they were.

I conclude therefore that the policy was unlawful because it was not a proper application of the guidance contained in the Circular, and the respondents did not properly take into account the essential requirements of the Circular in adopting and maintaining their policy. In my judgment, the respondents were aware from an early stage that they were not properly applying or taking account of the Circular. They knew that their own policy amounted to a blanket ban on Beta-Interferon treatment. A blanket ban was the very antithesis of national policy, the aim of which was to target the drug appropriately at patients who were most likely to benefit from treatment. They knew from as early as 12 January 1996 that, if there was no imminent prospect of a trial, it might be difficult to ‘hold the line’. Most revealingly of all, the note of the meeting of that date spoke about the possibility of ‘creative constraints’. This is surprising language to find in the context of health care.

What they had in mind at this early stage was using the possibility of a trial as a creative means of avoiding the implementation of national policy. The reason was plainly that the respondents disagreed with that policy. I fear that ‘creative’ is a euphemism for ‘disingenuous’. The prospect of a trial served its purpose as a creative constraint until that prospect disappeared. Thereafter the respondents resorted to other unacceptable and inconsistent excuses in seeking to hold the line, and hang on to their unsustainable position. My conclusion on this issue, based on the reasons that I have given, is sufficient to dispose of this application, subject to questions of relief.