Rose, R (on the application of) v Thanet Clinical Commissioning Group

Clinical commissioning groups must treat NICE recommendations made under regulation 5 as relevant considerations when formulating general funding policies. They must give clear, reasoned explanations for departing from such recommendations. A CCG cannot reject a NICE medical or scientific conclusion merely because it prefers a different assessment of the same evidence, although other reasons may justify a different policy. General funding policies and exceptional-funding procedures are distinct. An exceptionality policy is lawful if it genuinely permits funding where the patient is clinically different and likely to obtain significantly greater benefit. Equality duties apply to general policy formulation and require more than token consideration.

The claimant, who suffered severe Crohn’s disease, sought NHS funding for oocyte cryopreservation before gonadotoxic chemotherapy likely to cause infertility. The defendant’s triage group refused the request under its individual funding request policy, and later declined to reopen the matter because no new clinical information had been provided.

The claimant challenged the refusal, the defendant’s general policy against funding oocyte cryopreservation for patients undergoing gonadotoxic treatment, the exceptional-funding policy, and the defendant’s compliance with equality and Convention obligations. The central questions were whether the CCG had properly considered NICE Clinical Guideline 156, whether its reasons for departing from that guidance were rational, and whether its exceptionality policy was genuinely capable of application.

1. Nature of the decision under challenge. The triage group was concerned only with clinical exceptionality. It had no power to question or second-guess the CCG’s general policy and was not required to consider NICE guidance in determining an exceptional case. The refusal to reopen the claimant’s case was therefore lawful because no new clinical information had been supplied.
2. Regulatory framework. NICE recommendations under regulation 5 were public law relevant considerations in the formulation of general policies. The CCG had to explain why a general policy did not follow such a recommendation. The general-policy and exceptional-policy functions were conceptually distinct.
3. Departure from NICE guidance. Following R v North Derbyshire Health Authority, ex parte Fisher [1997-8] 1 CCLR 150, the better view was that the CCG could not reject NICE’s medical or scientific rationale merely because it disagreed with NICE’s assessment of the evidence. Alternatively, the reasons given were irrational. The October 2013 report failed to engage with the strength of NICE Guideline 156, the evidence considered by NICE, its conclusion that clinical pregnancy was a reasonable surrogate for live birth, and its assessment that the intervention would do more good than harm and be cost-effective. The new ART policy was unlawful.
4. Exceptionality. The policy was not a blanket refusal. It required the patient to be clinically different from the relevant cohort and likely to gain significantly more benefit. Proof of likely efficacy alone was insufficient. The claimant’s severe Crohn’s disease, personal circumstances and inability to pay did not establish exceptionality because the relevant comparator was patients undergoing gonadotoxic treatment.
5. Equality and Convention grounds. Differential treatment of oocytes and sperm did not itself amount to direct sex discrimination. However, the CCG’s equality assessment came close to paying lip-service to section 149 of the Equality Act 2010 and failed to engage adequately with the comparative evidence and issues identified by NICE. The pure Article 8 claim failed; the remaining Convention issue added nothing to the section 149 analysis.
6. Disposition. Permission was granted on all grounds except the pure Article 8 ground. The direct funding decisions and earlier decisions were not quashed, and relief was refused. Subject to written submissions on any declaratory relief concerning the extended case, the judicial review application was dismissed.

First-instance judicial review decision. No earlier appellate decision is stated in the judgment.