A leading solicitor has warned that the government's ban on NHS patients 'topping up' their care will end up before the courts.

Melissa Worth, of Halliwells in Manchester, planned to launch a judicial review after a Cornish woman was told that she would have to finance all her breast cancer care privately if she decided to pay for a drug not provided by the NHS.

But a special review panel of Cornwall and Isles of Scilly primary care trust decided to fund Avastin on the NHS for Debbie Hirst - avoiding the issue of whether she was in fact allowed to top up her care.

Ms Worth had been planning to use the Human Rights Act to argue that her client Ms Hirst was entitled to pay for the drug without it affecting her entitlement to NHS care at Royal Cornwall Hospitals trust.

In a similar case, a woman from Newcastle is appealing to her PCT to fund Avastin for advanced bowel cancer after she was told she could not pay for the drug without becoming a private patient. Public fundraising had ensured that Karen Gault could buy the drug privately but not the whole cancer care package.

In a third case where judicial review was being threatened, the Welsh trust concerned agreed to pay for the drug, citing an administrative error as the reason for its not being prescribed formerly.

Ms Worth said the issue of topping up was currently being "sidestepped" but she would be surprised if a case did not eventually end up in court.

"Either the Department of Health changes its guidance or it is tested in court," she commented. "If this gets tested in court and the court agrees with our arguments, then every patient will potentially have the right to co-pay and that goes against what the department says is the NHS ethos."

A spokesperson for Royal Cornwall trust said it was allowing a "very small number" of patients to continue with co-payment arrangements agreed before the position was clarified with the Peninsula cancer network and the DH.