Planned deferment or delay is another form of rationing. Once a new drug has passed all the hurdles, in a non rationed system it should be released for general use. The plan to defer and delay the right for doctors to use a new product is rational rationing, and perfectly appropriate. This case will depend on the use of the English language, and exclusions, prioritizations and deferments will all be referred to. There is plenty of precedent: occasions when a drug has been discouraged or disallowed until it’s patent is nearly over (usually 12 years), and in the USA delay of Salbutamol spray for asthmatics was responsible for many deaths. One can only speculate at the US reasons for delaying such a life saving drug. In a mainly private and insurance based system there could be few reasons for the delay, other than a political one. The delay allowed copycat products to be ready and waiting when salbutamol (Ventolin) was allowed.
Fortunately, in a small state run mutual such as Wales, there is no meaningful disincentive other than overtly rationing because we need to control costs. By being honest all the different jurisdictions can help to reduce costs, reduce expectations, and treat the taxpayer and citizen as partners in their own health mutual. (Good News?) NHSreality hopes the ABPI wins it’s case, as it will make the politicians take on the dishonest language of covert rationing. If the government wins the case should be appealed to the European Court before it no longer has the right to judge – after Brexit.
In the near term there is no doubt that rationing should be legal. Without it we will go bust. The pace of technology advances faster than our ability to pay. Demographics mean we live longer and need more care, and The Information Age means that we want to know the truth… But remember, the government and the politicians duty is not to individuals but to populations…. They must start listening to public health doctors instead of Single Interest Pressure Groups such as the APBI.
The pharmaceutical industry is taking the NHS to court in a highly unusual effort to block “wrong and unnecessary” rationing plans.
Drugs companies argue they are acting in patients’ interests by trying to kill off powers that allow health chiefs to delay or restrict medicines to save money, even if they have been ruled to be cost-effective by experts.
However, the sight of pharmaceutical giants dragging the NHS through expensive litigation will be uncomfortable for an industry that is trying to build bridges with the government over Brexit and industry strategy.
The Association of the British Pharmaceutical Industry is seeking judicial review of changes that allow NHS England to delay or restrict treatments if the total cost to the health service exceeds £20 million a year.
The rule applies to medicines already judged good value for money by the National Institute for Health and Care Excellence (Nice) and has been condemned by patient groups after it emerged that one in five new drugs could face delays. The threshold came into effect in April but has yet to be trigged.
Richard Torbett of the ABPI said: “We are talking about cost-effective medicines and the idea that the best medicines that help more people are going to be captured by this contravenes the fundamental right to access to cost-effective medicines . . . To arrive at this position where it’s the most important new medicines are the ones that get delayed, that seems back to front.”
He said that legal action was the “absolute last resort” but argued that NHS England had refused to consider options that would affect fewer people.
“We think the legal case is so strong that if we hadn’t taken this action given the strength of feeling somebody else would have looked to do so, possibly an individual patient,” he said.
“I believe we’re doing the right thing in terms of getting patients access.”
Rachel Power, chief executive of the Patients Association, said: “NHS England’s decision not to fund new medicines recommended by Nice was an astonishing admission that our NHS can no longer afford to keep up with scientific breakthroughs. This is a direct result of the government’s decision to under-fund the NHS. Patients throughout England will hope that this legal action forces a re-think.”
Baroness Morgan of Drefelin, chief executive of the charity Breast Cancer Now, said she hoped the legal case would “provide clarity on the issue of timely access to drugs in England”.
She said that the £20 million threshold would be a “major hurdle” for cancer drugs, adding: “We remain extremely concerned that the budget impact test could see NHS patients experience delays in accessing vital and cost-effective drugs.”
Simon Stevens, head of NHS England, has taken a tougher line on such spending, saying there is no reason why new drugs should “crowd out” spending on extra nurses, mental health staff or other effective ways to treat people.
NHS England and Nice declined to comment, but senior health officials are irritated that public money will have to spent to defend the action. Last year NHS England won a similar challenge against its decision to cap how many people would be treated each year with a breakthrough hepatitis C medicine.
Mr Justice Blake wrote in that case that “it is undesirable that the defendant as a public authority devoted to healthcare should have its budget for health provision reduced by irrecoverable legal costs it has incurred to meet a failed challenge”.
Mr Torbett insisted that all drug companies were behind the decision, expressing hope that the action would not disrupt recent efforts to build goodwill with minsters, which include handing over £250 million to the government this year to plug a hole in the drugs budget.
“Of course we would rather not be here but it’s not going to get in the way of collaboration with government and we hope it won’t prevent them from doing that as well,” he said.
A High Court hearing is expected in the next few weeks.