Those who have had funding of a treatment refused on the basis of a medicine being on a red list or some such thing may care to consider the underlined section below. Obviously the most likely thyroid medicine to fall into this is Liothyronine.
“You have the right to expect local
decisions on funding of other drugs and
treatments to be made rationally following a
proper consideration of the evidence. If the
local NHS decides not to fund a drug or
treatment you and your doctor feel would
be right for you, they will explain that
decision to you.”
(Section 3a of the NHS Constitution)
What this right means for patients
The availability of some healthcare services is determined nationally – for example, under the National Institute for Health and Care Excellence’s (NICE) technology appraisal or highly
specialised technology recommendations, where all CCGs, NHS England or local authorities
have to fund the recommended drugs and treatments. There are also some services that are
commissioned directly by NHS England, which will therefore take a national decision on their
However, in most cases, decision-making on whether to fund a service or treatment is left
to the local CCG or local authority. This is to enable CCGs and local authorities to commission services that best fit the needs of their local population.
For such decision-making, it is important that the process is rational, transparent and fair.
This right ensures that there is such a process.
If a CCG, a local authority or NHS England has decided that a treatment will not normally be
funded, it needs to be able to consider whether to fund that treatment for an individual patient on an exceptional basis.
Source of the right
From 1 April 2013,19 Part 7 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 placed a requirement on CCGs and NHS England to have arrangements in place for making decisions and adopting policies on whether a particular drug or other treatment is made available for the people for whom they are responsible. NHS England and CCGs will also have to publish information on those arrangements, and publish reasons for any funding policy or make such reasons available on request.
Administrative law requires that the decisions of NHS bodies and local authorities are rational, procedurally fair and within their powers.
In addition, decisions by the courts have made it clear that, although an NHS commissioner (which since 1 April 2013 includes a local authority commissioning public health services) can have a policy not to fund a particular treatment (unless recommended in a NICE technology appraisal recommendation or highly specialised technology recommendation), it cannot have a blanket policy; i.e. it must consider exceptional individual cases where funding should be provided.
Page 49 et seq.