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CCG leaders back IVF age restriction subject to legal challenge

Exclusive: CCG leaders have left themselves open to legal action after they backed controversial age restrictions on fertility treatment that go further than NICE guidelines and are currently the subject of a legal case being prepared by lawyers.

The rationing decision by Slough CCG to retain the PCT’s policy of limiting access to IVF treatment to women aged 35 years and over has left them open to being named in pending legal action over the restrictions.

The shadow CCG board met last week to consider the South Central SHA cluster policy that IVF treatment should not be offered in women aged 35 years or older.

NICE guidelines currently recommend that fertility treatment should be available to women between the ages of 23 and 39 years.

The board met after a couple from Slough launched legal action against the health secretary Jeremy Hunt and NHS Berkshire under age discrimination legislation after the health authority refused IVF treatment because the female was older than 35.

The test case will be the first to challenge NHS rationing decisions on the basis of age and could set a precedent for future action against CCGs.

A spokesperson for the CCG told Pulse: ‘The members received an update on current NICE guidelines for IVF at the meeting on Tuesday (18 December). There has been no change of policy.’

A spokesperson for NHS Berkshire said: ‘We can confirm that our solicitors are in receipt of a letter relating to this case and we are in the process of considering its contents. It would be inappropriate for NHS Berkshire East PCT to comment further in advance of responding directly to the patient’s solicitors.’

Clare Lewis-Jones, chief executive of Infertility Network UK, said the policy of Slough CCG and the South Central SHA cluster amounted to ‘out and out rationing’.

She told Pulse: ‘This case is very important. If the couple win and the CCG have to open up the age range to 23 to 39 years, it means they do have to do what the NICE guidelines say and that other couples outside that age range will have a chance.’

However, Dr Sarah Jarvis, the RCGP’s spokesperson on women’s health, said it was concerning that patients are suing health authorities over funding decisions.

She told Pulse: ‘I have some sympathy with the couple but I think we have to accept that unfortunately we live in hard financial times and difficult decisions have to be made. We have to acknowledge that CCGs are in a difficult position and they have to make difficult funding decisions.

‘The idea that patients can sue CCGs at the cost of tens of thousands of pounds fills me with horror because the money spent defending this would be better spent on the NHS.’  

Dr Charles Alessi, chair of the National Association of Primary Care, said: ‘CCGs have a duty to do their best to manage healthcare for their population within the resources available. This will mean that prioritisation for resources will vary depending in needs for individual populations. This is healthy, as long as the aspirations of individual populations are reflected correctly.’

Readers' comments (11)

  • Simpler to give one course of IVF
    to females 23-39 where infertility specialists deem it appropriate. The NHS can generate enough litigation without looking for more .

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  • It is surprising that CCG made a conscious decision to ignore NICE guidelines that are well known to be legally binding.

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  • I'm not aware of NICE guidance being legally binding - it is a national guidance and you would need a pretty good reason to ignore it but still, it is not in our contract to follow it to the letter.

    I do sympathise with people with difficulties. It is no doubt having a child is a joyous occassion. On the other hand, the nation's perspective of the NHS continues to amaze me. We are struggling to afford care for illnesses (and primary prevention) yet the patients are suing NHS for not providing non life threatening care.

    I'm starting to think "I hope these people are happy when in 20 years time they have to pay to see a healthcare professional after NHS disappears"

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  • Line in the sand time gentlemen and gentlewomen.
    We all (passively mostly) backed "Equity and excellence" and "agreed" to assume responsibility for healthcare spending with all this entails.
    This is the real world and decisions have to be made. NICE offers guidance not statute law.
    While you are about it spare a moment to reflect on the latest from the NAO--"Progress in making NHS Efficiency Savings so far.The NHS has sacked a lot of staff, frozen wages and people claim to have made savings but no one can hear any money rattling in the tin. They also warn that the next round of savings will be even worse talking about the possibility of £50bn savings being the reality.
    Over the next 3 years the NHS is bouncing between flat-line funding and at least 4% growth in demand.Ever seen this work in private industry? Thought not.
    Dont believe me look at the shrinking entitlements and access already in play in Europe.

    Wake up and smell the coffee its the economy that will redefine how the NHS operates, What it does, who it does it for and where it gets done. Our role is to accept that we need to "do more for no more" and have courage to do the "right thing"

    CCG's have to engage with patients and enable us to make the tough choices and always remember that this government does not believe in nationalised public services.
    If the NHS does well it will happily take the credit. But if it goes badly.....Now properly read the NHS mandate!

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  • Vinci Ho

    35 or 39 , it is still very much arbitrary as far as CCGs are concerned , why not 36 or 38. DoH and the government dare not set a legal limit . Hence , CCGs are left with the dirty job of facing the unhappy patients and judicial reviews . Feel sorry for the colleagues on CCGs boards . Don't forget IVF is only one of the examples where relatively more costly treatment options will be turned down ........

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  • Re comments from Vinci Ho
    Read your CCG constitution closely
    GP's are members of their CCG and their Practices and Governing bodies are interdependent.
    The CCG is you! Dont feel sorry for the Governing body and think you are somehow exempt from the flak You are most certainly not in the eyes of the public the media and the politicians!
    this government does not believe in nationalised public services. If the NHS does well it will happily take the credit. But if it goes badly.....Now as I siad in an earlier comment properly read the NHS mandate!

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  • This will be the first of many....guys you are going to be the scapegoats for rationing not the government of the day. This was always my contetention with this reform. Glad I am out of it far far away.

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  • CCG/GPs should be aware of the legal framework of the NICE guidelines and legal implications of the guidelines .
    This a quick remainder about glossary and legal standing of the NICE guidelines .

    NHS Directions are legally binding instructions to primary care trusts, health authorities, special health authorities and NHS trusts issued by the Secretary of State under section 8 of the National Health Service Act 2006.

    NICE’s Technology Appraisals are a specific form of Guidance published by NICE which are covered by NHS Directions issued in 2003. The Directions provide that primary care trusts shall make funding normally available to patients who meet the criteria set out in the Guidance. This funding should be made available within three months from the date that the Technology Appraisal Guidance has been issued unless an extension has been authorised by the Secretary of State.

    Guidance issued to the NHS is non-binding advice which is intended to assist the NHS in the exercise of its statutory duties. It recommends steps which might be taken, factors which could be taken into account and procedures which could be followed to deliver specified steps of administration or policy. NHS bodies are entitled to take decisions which do not follow Guidance (other than NICE’s Technology Appraisals) if they have a good reason to do so. The availability of resources and competing priorities can be a good reason.

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  • I think leave it to fertility specialists to select suitable groups of patients with the highest "take home baby rate".Fertility treatment is not a human right ,its a lifestyle choice and it would be crazy to enforce these sort of decisions on CCGs by legal action given the current financial strictures within the NHS.

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  • Gastric bypasses are a lifestyle choice but these seem to be given away freely to all and sundry. As an infertile woman and someone who has paid my taxes in the UK for all of my working life, I completely agree with jbpittard that at least one cycle should be granted. Often, there IS a medical condition that prevents fertility, however the two or three standardised fertility tests do not always pick up all of the possible conditions.

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