Breast cancer battle in court

Eight women with an aggressive form of breast cancer are challenging Pharmac's refusal to consider their circumstances exceptional so that potentially lifesaving Herceptin drug treatment will be paid for them.

The case, which began in the High Court at Wellington yesterday, is the first part of a wider challenge to government drug-buying agency Pharmac's decisions about Herceptin.

From July 1 it has funded a nine-week course for some early-stage breast cancer.

Some end-stage breast cancer sufferers can get a 12-month course.

The eight women's lawyer, Helen Cull, QC, said Herceptin could save the lives of women with the aggressive form of breast cancer, HER2 positive.

Two women have already finished their treatment.

Six others have to consider if they can afford to keep paying for treatment themselves or raise money in the community. Their specialists say they need a 12-month course costing about $70,000.

They were diagnosed too early to have even the subsidised nine-week course.

If the women were to win this part of the case they could apply again to Pharmac.

Ms Cull said Pharmac's first consideration rigidly applied criteria for getting subsidised drugs in exceptional cancer cases in an unreasonable and irrational way.

But Pharmac's lawyer, Mike Colson, is defending the way the decision was made. He said Pharmac's role was to apply criteria so that consistency was maintained throughout the country.

It was for district health boards to ultimately decide if Pharmac would pay for cancer drugs in individual cases.

Excluding the eight women in the court case, Pharmac approved all but nine of the 75 applications made under the current system for cancer drugs falling outside the usual rules.

Even the eight women's own oncologists agreed they did not meet the criteria, Mr Colson said.

The case continues today.