NICE and the NHS Constitution: a partial reprieve for clinical commissioners?

An interesting thing occurred when Andrew Lansley announced that NICE would no longer recommend which drugs and treatments should and should not be offered on the NHS – NICE became, well nice.

The alternative, new local commissioners having to make these decisions at a local level looked inequitable and unworkable.  After all, NICE has been a lightening conductor for public anxiety around rationing, and has taken difficult and highly technical decisions out of the hands of local commissioners.

Following a recommendation from the NHS Futures Forum, the Government has signalled that NICE will now continue in its previous role.  Clinical commissioners can breathe a sigh of relief. The price will be the loss of some local autonomy in how budgets are spent, and some of the well rehearsed criticisms of NICE's approach are likely to be revisited.

These issues will come into sharp relief as the NHS struggles to survive on £20 billion less over the next four years.

One clear lesson that clinical commissioning groups (CCGs) can take from NICE is using a robust process when making decisions about which drugs and services to fund or not. At a recent Nuffield Trust workshop, held in partnership with NICE and the National Association of Primary Care (NAPC), Dr Mark Sheehan of Oxford University highlighted that ethically there will always be a tension between two competing ideas of justice – the rights of the individual to be treated fairly versus getting the most out of our resources for the population.

The courts also acknowledge that local commissioners have to make judgements about how funds are spent.  As Professor Chris Newdick of Reading University noted, where PCTs have faced judicial review for refusing to fund drugs for individual patients, the procedure used for making the decision, rather than the decision itself, has been contested in the courts.  

The only right to treatment that patients have under the NHS Constitution is the right to treatments recommended by NICE.  The clear message, from both these speakers, is that decision making processes need to be fair, rigorous and transparent.  There will never be a right answer.

Another Futures Forum recommendation that will have implications for CCGs is a strengthened duty to provide choice to patients through the use of a 'Choice Mandate' by the NHS.  The Futures Forum rightly highlighted that real choice is about more than just choosing which hospital you want to go to. 

How this choice is defined and expressed by the government and patients may have a profound affect on commissioners’ ability to control local clinical priorities. The ultimately conflicting requirements to balance a diminishing budget and also offer choice – especially of treatment – will have to be managed very carefully.

People often feel that the decisions made locally by PCTs – for example, on bariatric surgery – are arbitrary and therefore unfair.  The chance to look at things afresh, coupled with a squeeze on budgets, could present a unique opportunity. CCGs may just be able to implement the difficult decisions that PCTs have been unable to, such as stopping funding for certain services.  

This will only work if CCGs are able to convince the public that their decisions are fair.  Deciding who to involve in decision making and how to involve them is complex and needs to be well thought through.  

But a transparent and fair process, coupled with real shared decision making, is not just a legal requirement; it is an ethical one too, both for individual patients and the population as a whole.