Specialist Healthcare Lawyer Says NHS Could Face Legal Challenges If New Criteria For Funding Medicines Is Not Fair To All

Specialist healthcare lawyers who have successfully fought for the rights of patients to receive access to vital treatments say the NHS could face legal action if it is found to discriminate against patients because of age or other characteristics under new proposals for approving drug funding.

Yogi Amin, a partner at Irwin Mitchell and expert in medical law, has successfully fought on behalf of patients being blocked from accessing drug treatments which could be life-saving or significantly improve their health. He says new policies face the risk of discriminating against individual patients by deeming that some drugs should only be available if suitable for a wide proportion of society.

The National Institute for Health and Care Excellence (NICE), which decides whether new medicines should be approved, is planning to change the criteria on how funding is allocated with a consultation set to be launched in February.

The new system would take into account “wider societal benefits” alongside the cost of medication and its life-enhancing properties.

In 2006 Irwin Mitchell won a number of cases on behalf of cancer patients including a high profile case in the Court of Appeal to allow all women with breast cancer to access the Herceptin drug after an NHS body previously tried to deny access to all patients. Irwin Mitchell successfully argued that the women identified by their treating NHS clinician as being able to benefit from the drug treatment should be allowed to access the appropriate treatment.

Yogi Amin of Irwin Mitchell, who led the Herceptin challenge and has been involved in many similar medical treatment cases over the past 10 years, said:

Expert Opinion

There are many niche illnesses and conditions that are wholly treatable or can be significantly improved with the help of certain drug treatment and new medicines, yet because of funding issues and changes to the criteria there is a chance that these patients could miss out.

“The NICE body sets guidelines on access to NHS treatment based on a calculation of what a patient’s life is worth. NICE are proposing changes to take into account the benefit to the wider society but healthcare should also focus on what is best for each individual patient. No one should have the right to refuse a patient life saving or life prolonging treatment if their NHS doctor believes the patient will benefit from it. In the past we have seen cases whereby an experienced doctor can prescribe a course of medical treatment but the NHS body has refused to fund the drug.

“British human rights and equality laws are in place to ensure that NHS patients have the ability to challenge unfair treatment and discrimination.

“There are worries in particular surrounding some cancer drugs and new medicines for patients with dementia and Alzheimer’s. Although people of all ages can be affected, these drugs are more commonly needed by older members of society who under new proposals could be deemed to be contributing less to society because they may not be working and may no longer have dependent children.

“It is important that all members of society, including vulnerable people such as the older population, receive the same assessment of their individual needs by a doctor to ensure they are not disadvantaged when making healthcare decisions. Although the NICE says that they do not take age into account when deciding the benefit of the drug treatment, with any new policy there is a risk of indirect discrimination because certain groups of people may fall into the same category by default or a proper analysis is not made of the benefits of the drug treatment in different section of society.” Yogi Amin - Partner and National Head of Public Law and Human Rights

Read more about Irwin Mitchell's expertise in Protecting Your Rights.