NHS England consultation on ceasing to commission “low value” treatments

NHS England and NHS Clinical Commissioners have published a consultation about whether CCGs should cease to commission medical treatments that deliver little, if any, benefit to patients.   This is only a consultation and hence final guidance has not been issued yet, but cutting down spending on low value treatments is clearly on the NHS’s agenda.

The headlines have all been about the NHS ceasing to commission homeopathy. The advice against funding homeopathy will be resisted by some MPs, such as David Tredinnick who is an Old Etonian Tory MP who was perhaps described unfairly in a Spectator article of June 2013 as “bear of very little brain” but who supports homeopathy despite the absence of any proper evidence of it having anything more than a placebo effect.

However the consultation is about a far wider range of treatments than homeopathy. For example, NHS also spends £100k per year on “herbal treatments” and £1.5M a year on Lutein and antioxidants (e.g. vitamin A, C E and zinc) which are supplements previously recommended for Age Related Macular Degeneration.   Both are recommended to be removed from NHS funded treatment in the future.

The consultation also recommends the end of prescribing Trimipramine, which is a tricyclic antidepressant, because the price of Timipramine is significantly more expensive than other antidepressants.   The logic here is that other antidepressants should be used instead of Timipramine because that will provide more cost effective medicine for the NHS.

Is it lawful for NHS England to advise CCGs and doctors what they should and should not be commissioning?  The answer is almost certainly “yes”.  Even if doctors want to prescribe a specific treatment and the patient wants to receive it, there is no overriding duty on the NHS to fund the treatment.

NHS England is entitled to issue Guidance to CCGs about what they should and should not commission under section 14Z8 of the NHS Act, and CCGs have a legal duty to have regard to that Guidance.   Somewhat embarrassingly, the consultation paper refers to Guidance being issued under “Section 14ZG of the NHS Act” but there is no “Section 14ZG”.  Whilst this is an otherwise well written document containing some eminently sensible proposals, it is perhaps telling that NHS England cannot even properly identify the statutory provision under which it can eventually issue Statutory Guidance.

Even if Guidance is later issued, that does not remove all discretion from a CCG.  A CCG could still agree to fund items of the “disapproved” list.  However, a CCG would have to have a clearly articulated reason for departing from the Guidance and, following the case of Fisher v Derbyshire HA, that probably cannot include a disagreement on the lack of clinical effectiveness of a treatment.

Responses to the consultation are invited by 21 October 2017.

Meanwhile CCGs should be looking at their own commissioning policies to bring them up to date in order to comply with the transparency requirements in Regulation 34 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.