A QC for Colin Ross, 55, told a judge it was an "end of the road" legal challenge that could mean death in the next couple of months if he fails, or his life being extended by up to three years if he wins.

Mr Ross, from Horsham, West Sussex, was diagnosed with multiple myeloma, a cancer of the blood cells, in May 2004 and has been told by doctors that unless he is given the drug Revlimid he will not survive beyond the autumn.

He is challenging a refusal of West Sussex Primary Care Trust last March to fund the new drug, even though leading cancer specialist Professor Karol Sikora has said he is "eminently suitable" for treatment.

Richard Clayton QC told Judge Simon Grenfell, sitting at London's High Court, the trust's decision was "irrational" and it had erred in its estimate of the cost effectiveness of Revlimid.

The trust had also "operated its policy in an over-rigid way, unlawfully fettering its discretion".

Mr Clayton said: "This application (by Mr Ross) for this drug is the end of the road for him. Either he gets the drug and is able to have life-prolonging treatment, or he doesn't and treatment ceases, with inevitable consequences."

In a recent survey, 60% of the applications made for exceptional funding with the drug in England and Scotland had succeeded, said Mr Clayton. But this particular trust did not consider that Mr Ross's case was exceptional.

Mr Clayton said the case raised the "random and disquieting" problem of treatment depending on a patient's postcode.

"Were the claimant to live a mile-and-a-half in either direction from where he does he would have received the drug," said Mr Clayton. "That is a factor to bear in mind when it is suggested by the defendant that there is nothing exceptional about this case."


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