27 July 2011 Last updated at 08:02 ET

Obesity surgery court battle lost by Tom Condliff

Thomas Condliff speaking ahead of the Court of Appeal decision: 'No gastric bypass means I'll die.'

A 22-stone ex-policeman has lost his Court of Appeal fight to force a health authority to fund obesity surgery.

Tom Condliff, 62, said he needed a gastric bypass operation to save his life after becoming obese due to the drugs he takes for long-term diabetes.

The Stoke-on-Trent man had challenged North Staffordshire PCT's decision not to fund the procedure.

The judges said they had "considerable sympathy" for him but ruled the PCT had not breached human rights laws.

'Rather avoid surgery'

Lord Justice Toulson, one of three judges sitting on Wednesday, said: "Anyone in his situation would feel desperate."

Mr Condliff is now planning to take his case to the Supreme Court.

Analysis

Nick Triggle Health correspondent, BBC News

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No-one likes to admit it, but rationing is commonplace in the NHS.

The perception of many is that the health service is there whenever someone needs it. But that is simply not true. It has a limited budget and as such there are things it cannot do.

The reality of this has been seen in recent years as the health service has deemed a number of new drugs unaffordable. The situation also forces NHS chiefs to restrict access to existing treatments.

This is what has happened in North Staffordshire, where the threshold for access to obesity surgery is higher than the recommended level.

Similar steps have been taken elsewhere with everything from hip and knee surgery to fertility treatment.

Today's verdict confirms the NHS should be free to act like this. And with the health service in England expected to save 4% annually from its £100bn-plus budget for the next four years more measures like these are likely.

The 62-year-old grandfather, has a body mass index (BMI) of 43 - not high enough under his PCT's rules to qualify for surgery.

He lost a High Court battle over the decision in April.

Only patients with a BMI above 50 are routinely treated with weight loss surgery in North Staffordshire.

Guidelines for the NHS in England and Wales suggest patients should be considered if they have a BMI of more than 40, or lower if they have other serious medical conditions.

Mr Condliff's lawyers had argued the PCT had applied a funding policy which was legally flawed and breached his human rights.

He suffers from 13 illnesses, takes 28 different drugs and uses breathing masks and inhalers.

He has said he would rather avoid surgery, which would involve removing part of his intestine and stomach, but said without it his life was in danger.

Doctors have told him his kidneys will quickly fail and then he will only have three years to live if he does not get the surgery.

'Restricted calories'

At the High Court hearing earlier this year, judges said Mr Condliff had tried non-surgical interventions including diets, lifestyle changes and drugs.

Speaking on Wednesday, Mr Condliff's solicitor, Oliver Wright, said the operation was the only way he could lose weight.

"It is the only treatment that's going to help his type 2 diabetes, and in about 90% of cases, this operation does in fact cure type 2 diabetes.

"You know, his doctors are very confident that it is all diabetes related, he's on a very severely restricted calorie count of 400 to 500 calories a day, so it's not overeating."

He said it was also more cost effective for the NHS.

"On the bare figures. the operation costs £5,500," he said.

"His current treatment costs at least £30,000 and he's only going to get worse which is going to be more expensive for the PCT."