Facts: Herceptin had not been approved by NICE, although the National Cancer Research Institute recommended its use for women fitting certain criteria (‘the eligible group’). The PCT’s policy was to fund Herceptin treatment for breast cancer in exceptional cases only (but not to take its resources into account).

Judgment: the Court of Appeal (Sir Anthony Clarke MR, Brooke and Buxton LJJ) held that it was rational in principle to have an ‘exceptional cases’ policy, but once resources were treated as irrelevant the only relevant considerations could be clinical (rather than social) need and there was no rational basis for treating some women who fell within the eligible group differently than others, in terms of their clinical need.