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High Court hears important judicial review on eye-drugs used in the NHS

DATE: 13 Jul 2018

The High Court is this week hearing an important judicial review concerning the use of eye drugs in the NHS. R (Bayer plc & Novartis Pharmaceuticals UK Ltd) v. NHS Darlington CCG and others involves two joined judicial reviews challenges relating to the decision by 12 care commissioning groups ("CCGs") in northern England to adopt a policy to permit patients with wet age-related macular degeneration ("wet AMD") a choice of treatment between 3 drugs. Wet AMD is the biggest cause of vision loss in the UK. Two of the drugs, Eylea and Lucentis, hold EU marketing authorisations for use in the treatment of wet AMD. Bayer hold the intellectual property rights in Eylea.

A company in the Roche group holds the intellectual property rights in Lucentis, but a licence to market the drug in Europe has been granted to Novartis. The third drug, Avastin, has a marketing authorisation for the treatment of certain types of cancer but not for wet AMD. Roche holds the intellectual property rights in Avastin and have never applied for a marketing authorisation for Avastin to treat wet AMD. Avastin is, however, used throughout the world, including in the EU, as a first-choice treatment for wet AMD and NICE has recognised the drugs as equally clinically effective and safe.

The use of Avastin to treat wet AMD is much cheaper than Eylea and Lucentis. The CCGs' policy would release tens of millions of pounds per year to be spent supporting other NHS patients. Bayer and Novartis are challenging the policy as unlawful.

The claim is being heard by Whipple J between 10 and 17 July 2018.

David Lock QC and David Blundell represent the CCGs, instructed by Mills & Reeve.