Published Monday, 05 March 2012
Mr Withers wants to use a method of treatment currently unavailable in NI. (© UTV)
Brian Withers was refused leave to seek a judicial review after a judge held medical opinion should not be interfered with.
A panel of experts previously decided that the Belfast man should receive palliative chemotherapy for a tumour in his chest.
Mr Withers is now hopeful that a clinical oncologist will refer him for further treatment and "the chance of life".
Outside the court he said: "To do nothing is certain early death for someone in my position.
"This treatment is the opportunity of life."
The 60-year-old left work because of ill health and was seeking funding for Stereotactic Body Radiotherapy (SBRT), a method currently unavailable in Northern Ireland.
It involves the use of a specialist machine called the Cyberknife, alongside traditional chemotherapy, to target tumours which would be inoperable because of their close proximity to major organs.
Mr Withers has already travelled to London to undergo SBRT on a separate abdominal tumour.
He raised £30,000 through loans and donations for that radiotherapy and said his stomach area has just been given the all-clear.
But despite the chemotherapy initially working to shrink another secondary cancer identified in his chest area, Mr Withers said it has now grown back.
With no charitable means left open, he wanted the Belfast Health and Social Care Trust to recommend financing another course of SBRT.
However, a multi-disciplinary team decided in May last year that palliative chemotherapy should be given to him.
Although his MP Naomi Long lobbied for the treatment which would have cost another £20,000 plus consultants' fees, the Trust confirmed its position last November.
In court on Monday counsel for Mr Withers argued that the decision was irrational and breached his right to life under European law.
Barrister Michael Forde also claimed his client was not properly informed of an opportunity to seek funding.
It was further contended that a second opinion and recommendation of London-based NHS clinical oncologist Dr Andrew Gaye - an expert in the Cyberknife procedure - was not taken into consideration.
But David Dunlop, for the Trust, countered that the legal challenge should be rejected because it was not for the courts to decide on the judgment of medical experts.
Mr Justice Treacy agreed that the judicial review application must be dismissed, despite expressing sympathy for Mr Withers' condition.
He pointed out that the Trust still believes that palliative chemotherapy is the appropriate care.
Mr Withers said he was disappointed by the ruling. He now hopes to be referred for funding after meeting his clinical oncologist next week.
"It's now urgent. I don't want to be told in three or four months time 'Sorry, Brian, your chance has gone because the tumour has grown too big'," he said.
"Dr Gaye told me I had infinitely more chance of life if I had this treatment.
"He made me a guarantee that with the chemotherapy alone there's no future: in other words, death.
"Dr Gaye was offering me the chance of life."