R British Homeopathic Association v National Health Service Commissioning Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 05 June 2018 |
| Neutral Citation | [2018] EWHC 1359 (Admin) |
| Docket Number | Case No: CO/4843/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 June 2018 |
The Queen on the application of
and
[2018] EWHC 1359 (Admin)
THE HONOURABLE Mr Justice Supperstone
Case No: CO/4843/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Clayton QC (instructed by Bates Wells & Braithwaite (London) LLP) for the Claimant
Jonathan Moffett QC (instructed by Bevan Brittan) for the Defendant
The Interested Parties were not represented
Hearing dates: 1–4 May 2018
Judgment Approved
Introduction
This is the rolled-up hearing, ordered by Yip J on 20 December 2017, of the Claimant's application to challenge (1) a consultation by the Defendant, known as NHS England (“NHSE”) on “ Items which should not routinely be prescribed in primary care” (“the consultation paper”) published on 21 July 2017, in relation to the proposals relating to homeopathy, and (2) the decision of NHSE made on 30 November 2017 to implement the consultation proposals in respect of homeopathy by issuing guidance (“the Guidance”) to Clinical Commissioning Groups (“CCGs”).
The Guidance recommends that prescribers in primary care (in effect, general practitioners, or “GPs”) should not prescribe homeopathic treatments as a new treatment for any patient, and that GPs should be supported in de-prescribing homeopathic treatments for all patients for whom they are currently being prescribed.
“Homeopathy” is defined by NHSE for the purposes of the Guidance (at para 4.7) as the treatment of patients “with highly diluted substances that are administered orally”.
The Claimant is a charity which has the overall objective of ensuring that homeopathy is available to all by means of, amongst other things, ensuring patients have access to homeopathy.
The original claim form filed on 20 October 2017 challenged the consultation on the consultation paper published on 21 July 2017. The amended claim filed on 22 January 2018 challenged in addition the decision to implement the consultation proposals made on 30 November 2017.
The Claimant's pleaded case included the contention that “the seriously unbalanced and inaccurate views NHS England expressed in relation to homeopathy and/or the decision based on them are in the circumstances irrational” (Claimant's Amended Grounds dated 22 January 2018 (“Amended Grounds”) at para 2.9). However, shortly before the hearing, in their skeleton argument dated 16 April 2018, the Claimant stated (at para 14) that it had decided not to pursue that ground.
Relevant Legislative Background
Save in relation to the NHSE's power to issue the Guidance (which I consider at paras 97 to 105 below), the relevant legislative background is not in issue. It is helpfully set out at paras 21–34 in the Defendant's Detailed Grounds of Resistance, so far as is relevant:
“ (1) The National Health Service Commissioning Board
21. The Defendant was established as a body corporate by s.1H of the [National Health Service Act 2006] [“the 2006 Act”]. Pursuant to s.1H(4) of, and paragraphs 2 and 3 of Schedule A1 to, the 2006 Act, the Defendant has 13 members, comprising a chair and eight members appointed by the Secretary of State (the non-executive members) and four executive members appointed by the non-executive members. The executive members include a chief executive.
23. The Board has a duty to continue the promotion in England of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England, and improvement in the prevention, diagnosis and treatment of physical and mental illness. The Board and the Secretary of State have concurrent duties in this respect (ss.1(1) and 1H(2) of the 2006 Act).
24. For the purpose of discharging that duty, the Board has the function of arranging for the provision of certain services for the purposes of the health service in England (s.1H(3)(a) of the 2006 Act). In particular, the Board must, to the extent that it considers necessary to meet all reasonable requirements, exercise its powers so as to secure the provision of primary medical services throughout England (s.83(1)). In this respect, the Board may make such arrangements for the provision of primary medical services as it considers appropriate; and it may, in particular, make contractual arrangements with any person (s.83(2)). In so far as is relevant for present purposes, primary medical services are services provided by general practitioners (“GPs”) pursuant to general medical services contracts (“GMS contracts”).
25. The Board also has a duty to exercise the functions conferred on it by the 2006 Act in relation to clinical commissioning groups (“CCGs”) so as to secure that services are provided for the purposes of the health service in England in accordance with the 2006 Act (s.1H(3)(b)).
26. Under chapter A1 of Part 2 of the 2006 Act, the Board is subject to various general duties (also referred to as 'secondary duties: R (National Aids Trust) v NHS Commissioning Board [2016] PTSR 1093, paragraph 35 per Green J) relating to how the Board must exercise its functions. In summary, the Board must exercise its functions:
(1) with a view to securing that health services are provided in a way which promotes the NHS Constitution (s.13C);
(2) effectively, efficiently and economically (s.13D);
(3) with a view to securing continuous improvement in the quality of services provided to individuals for or in connection with (a) the prevention, diagnosis or treatment of illness, or (b) the protection or improvement of public health (s.13E);
(4) having regard to the duty to reduce inequalities between patients with respect to their ability to access health services and reduce inequalities with respect to outcomes achieved for them by the provision of health services (s.13H);
(5) with a view to enabling patients to make choices with respect to aspects of health service provided to them (s.13I);
(6) to promote innovation in the provision of health services (s.13K);
(7) to promote research (s.13L);
(8) to promote education and training (s.13M); and
(9) to promote the provision of services in an integrated way where this could improve the quality of services provided and reduce inequalities between persons with regard to their ability to access relevant services and reduce inequalities with regard to outcomes (s.13N(1)).
27. Where any services are, or are to be, provided pursuant to arrangements made by the Board itself, it must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways): in the planning of commissioning arrangements by the Board; in the development and consideration of proposals by the Board for changes in commissioning arrangements, where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them; and in decisions of the Board affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact (s.13Q of the 2006 Act).
(2) Clinical Commissioning Groups
28. CCGs were established by s.1I of the 2006 Act. Each CCG has the function of arranging for the provision of services for the purposes of the health service in England in accordance with the 2006 Act (s.1I(2)).
29. Whilst NHSE is responsible for reimbursing pharmacies for the costs of prescriptions, in practice each CCG receives a pharmaceutical budget for each financial year, and each CCG is then responsible for meeting the costs of prescriptions dispensed to patients within its area.
30. CCGs also support and guide GPs and other primary care prescribers to prescribe efficiently, economically and effectively.
(3) The Board's Power to Issue the Guidance
32. CCGs are not subject to any duty to follow the Guidance, and nor is there any express duty on CCGs to have regard to guidance issued under ss.2 and/or 14Z10 of the 2006 Act (cf s.14Z8(2)). However, pursuant to the general principles of the common law, the Guidance is likely to be a matter that should be taken into account by CCGs when exercising relevant functions.
(4) General Practitioners
33. In order to enable it to discharge its duty to secure the provision of primary medical services throughout England, the Board has power to enter into GMS contracts (s.84(1) of the 2006 Act). Accordingly, responsibility for commissioning GP services rests with the Board, although in many cases this function is either delegated to local CCGs or exercised jointly with them.
34. Under GMS contracts, GPs have responsibility for prescribing drugs and appliances to patients…”
Factual Background
Mr Alexander Williams, a Deputy Director in the Medicines, Diagnostics and Personalised Medicine Team of NHSE, who acted as project manager for the project which resulted in the issuing of the Guidance, sets out in his first witness statement the background to the issuing of the Guidance.
On 23 February 2017 NHS Clinical Commissioners (“NHSCC”), which is a membership organisation for CCGs, provided to NHSE a paper it had prepared which included a series of proposals which sought to achieve efficiencies in the primary care budget, in the context of the overall allocation to CCGs for prescriptions. One of the proposals was a “recalibration of the rules and policies governing what the NHS will and won't fund on prescription”. NHSCC had identified a “basket of...
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