Judicial Review in the new NHS
Exceptional funding for NHS treatment
Under the Health and Social Care Act 2012 (which came into force in April 2013) the Secretary of State for Health owes a statutory duty to provide health services, and for the most part this responsibility is delegated to the regional GP led Clinical Commissioning Groups (CCGs) in England. This means in practice CCGs make most of the decisions as to how health services and resources are to be allocated in any particular area in line with their own budget. Some specialist services are funded by the NHS overseer body which is known as the NHS Commissioning Board (NHSCB).
In the event of a CCG or the NHSCB making an irrational or unlawful decision about the provision of a particular drug, service or treatment it may be possible to challenge the decision in the Courts through a process known as Judicial Review.
Problems can arise where a particular treatment is not considered appropriate by a patient’s treating clinicians, the treatment is particularly expensive, or it has not been recommended and licensed for use by the National Institute for Health and Clinical Excellence (NICE). Even if particular treatment has not been authorised by NICE or it is a treatment which is not ordinarily provided by the NHS, CCGs should have Exceptional Funding Policies whereby an individual patient can apply for NHS funding.
CCGs have a duty to give reasonable consideration to applications for exceptional funding and decisions must be made lawfully and fairly. In addition Exceptional Funding Policies should be rationally based. If exceptional funding is refused the CCG should give the patient written reasons why the decision has been made.
Examples of cases which have reached the Courts recently have involved particularly expensive cancer drugs and gender reassignment surgery.
In April 2013 the Health and Social Care Act 2012 abolished the 152 regional Primary Care Trusts (PCTs) who were previously responsible for making the majority of decisions as to how health services and resources were allocated in any particular area. There are now 211 CCGs who are responsible for funding the majority of health services including emergency care, elective hospital care, maternity services, and community and mental health services. In 2013/14 they will be responsible for a budget of £65 billion, around 60 per cent of the total NHS budget.
Some commentators have suggested that under the new system there is a real risk of an increase in the inconsistency of decision making on a regional basis (sometimes called the postcode lottery) as there are more CCGs than there were PCTs. Only time will tell.
Any new challenges made by patients in respect of local decisions regarding the provision of health services after April 2013 or in respect of exceptional funding are likely to be made against the newly established CCGs.
Clarke Willmott LLP is able to offer publicly funded (Legal Aid) advice and representation on legal challenges made in respect of the provision of health and social care.
We can assess whether or not you are eligible for Legal Aid. If you are not eligible for Legal Aid then we still may be able to help you.
If you think that you may have a potential judicial review claim you must act quickly, as cases must be brought “promptly and in any event within 3 months” of the date of the decision that you wish to challenge.
If you have any queries in relation to the above please contact John Boyle.