A former nurse who will die from Breast cancer unless she receives a new drug to extend her life is taking her case to court.

Barbara Clark’s lawyers have given Somerset Coast Primary Health Care Trust two weeks to agree to prescribe Herceptin, a “magic bullet” cancer drug which costs around $27,000 per patient per year.

The trust is refusing to offer the drug because it has yet to be licensed and approved by the National Institute for Health and Clinical Excellence.

But Ms Clark, 39, said she would use Human Rights legislation to force the issue into court.

She said: “I think the NHS is using the excuse that it’s unlicensed and unapproved by Nice but Patricia Hewitt did say that it didn’t need to be licensed and approved for consultant’s to prescribe.

“It has been described in London and Edinburgh so effectively it’s a postcode lottery.”

Herceptin is not a cancer cure but researchers have hailed it as a major breakthrough because it reduces the chances of the disease returning.

“I can’t fight the cancer but I can fight the system that says ‘this is a drug that keeps you alive but you can’t have it because you haven’t got the money’, said Ms Clark.

“This is freely available through private health insurance.”

If Ms Clarke is successful in suing her local health trust it would the first time a patient has used the Human Rights Act to force the NHS to prescribe a drug.