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CCG warned in court for disregarding NICE guidance

A court has reprimanded a CCG for disregarding NICE guidance simply because it did not agree with it, NICE has revealed.

The court ruled Thanet CCG had unlawfully denied a NICE-recommended treatment to one of its patients, because it gave no grounds for exceptional circumstances to justify the decision. The CCG had simply stated there was not enough clinical evidence to support the recommendation.

The ruling stated that CCGs cannot ‘simply ignore’ NICE guidelines ‘without having a clear case to do so’, NICE said.

The case involved 25-year-old Elizabeth Rose, for whom King’s College Hospital sought NHS funding for oocyte preservation before she undertook chemotherapy as part of her treatment for a severe form of Crohn’s disease.

NICE fertility guidance – updated last year – recommends oocyte or embryo cryopreservation is offered to women of reproductive age who are preparing to have medical treatment for cancer that is likely to make them infertile.

But NHS Thanet CCG rejected the application on the grounds there was not enough evidence the procedure was effective.

Despite CCGs having no legal duty to comply with NICE guidance – unlike technology appraisals, which they must abide by – the court ruled the CCG was under obligation in public law to ‘have regard for NICE guidance’ and it must ‘provide clear reasons for any general policy that does not follow NICE guidance’.

The judge, Justice Jay, ruled the CCG could have found other reasons ‘on the basis of exceptionality’ for departing from the NICE guidance, but simply disagreeing with the guidance was ‘not enough’.

Sir Andrew Dillon, chief executive of NICE, said: ‘This court ruling highlights that CCGs cannot simply ignore NICE guidelines without having a clear case for doing so. NICE guidelines are based on the best available evidence. Our fertility guideline was recently updated and provides clear support for the use of oocyte cryopreservation.’

Dr Steve Kell, chair of Bassettlaw CCG and co-chair of NHS Clinical Commissioners (NHSCC) Leadership Group, told Pulse commissioners would need further clarification on how to interpret NICE guidance when making local decisions, in light of the ruling.

Dr Kell said: ‘It is essential that we have further clarity on this important issue and understand the balance between local decision making and national guidance.  

‘NHSCC, as the membership organisation for CCGs, will work with NICE to ensure we achieve this clarity for CCGs and our patients.’

Thanet CCG was unavailable for comment but, according to NICE, they will consider the full written judgement carefully and will work closely with NHS England in doing so. If necessary they will review their policy on the freezing of eggs.