PLT Masthead 430

Masthead Healthcare - Litigation

Judge rejects legal challenge over NHS decision on homeopathic medicines

A High Court judge has rejected the British Homeopathic Association’s judicial review challenge to a NHS England (NHSE) consultation and subsequent guidance that homeopathy should not routinely be prescribed in primary care.

The NHSE consultation was published on 21 July 2017 and the decision made on 30 November 2017.

The guidance recommends that 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.

In British Homeopathic Association, R (On the Application Of) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) the claimant put forward three amended grounds of challenge:

  1. NHSE had failed to consult fairly by failing to provide consultees with sufficient information to enable them to give a meaningful response to the consultation and failing fairly to summarise the homeopathy issues the consultation was considering and/or NHSE misled consultees and/or failed to consult on alternatives.
  2. NHSE failed to consult at a time when proposals were still at a formative stage and/or there was a substantial risk that it had pre-determined its decision to withdraw support for homeopathy; and
  3. NHSE had breached the public sector equality duty contrary to s.149 of the 2010 Act.

Shortly before the hearing the BHA also argued that NHSE had no power to issue the guidance, as it purported to do, under s.14Z10 of the National Health Service Act 2006.

Mr Justice Supperstone concluded that the grounds of challenge advanced at the hearing were arguable. However, he also found that none of the grounds of challenge were made out.

Amongst other things the High Court judge:

  • reached “the clear conclusion that the consultation document presents a fair and balanced view of the information required for a lawful consultation process”.
  • was satisfied that NHSE consulted at a time when proposals were still at a formative stage. “There is no evidence of bias or predetermination on NHSE's part.”
  • was satisfied that NHSE was rigorous in the discharge of the public sector equality duty to have "due regard" to relevant matters, and that it was entitled, on the evidence before it, to conclude that the guidance would not have an adverse impact on the statutory equality objectives, but rather, as the analysis found, "would [enable] patients to have access to the most effective medications to achieve the best outcomes".
  • rejected the claimant's contention that because s.14Z8 expressly provided for NHSE to have a power and duty to give guidance on certain matters, s.14Z10 could not be interpreted as also covering a power to give guidance.

Margaret Wyllie, BHA Chair, claimed that the case highlighted how health decisions were being taken without genuine patient engagement. “That NHS England attracted fewer than 3,000 responses from patients to a national consultation that ran for three months highlights its failure to genuinely engage with the public on important decisions about healthcare provision.”

She also criticised NHSE over a press release in which the only negative statement was about homeopathy, even though 18 medicines were under review.

“The statement was so prejudicial it was widely reported in the media that the decision to deny patients homeopathic medicines had already been taken. How the judge failed to recognise that this was a deliberate attempt by NHS England to unfairly influence the public is astonishing,” said Mrs Wyllie.

Page Sponsor - A&M Bacon

Archive

Search more than 10,000 articles

Featured Jobs

Newsletter Subscription

* indicates required
Choose Newsletter(s) (tick all that apply)
 

Featured Events

Fixed term tenancies - Cornerstone Barristers

London

CPD Hours3 FeeEarly Bird offer £30+VAT (Until 1st October) / Standard Ticket £40 +VAT VenueCornerstone Barristers, 2-3 Gray's Inn Square, London, WC1R 5JH More details to follow...
→ View listing
Succession & assignment of tenancies - Cornerstone Barristers

London

CPD Hours3 FeeEarly Bird offer £30+VAT (Until 1st August) / Standard Ticket £40 +VAT VenueCornerstone Barristers, 2-3 Gray's Inn Square, London, WC1R 5JH More details to follow...
→ View listing
Local Authorities – Planning Seminar Series 2018: Leeds - No5 Chambers

Yorkshire

No5 Barristers' Chambers Planning Group invites you to join them at their Local Authorities Seminar Series which is taking place in London, Bristol, Leicester and Leeds. The Seminars consist of a morning session dedicated to Planning and Development Update...
→ View listing
Local Authorities – Planning Seminar Series 2018: Leicester - No5 Chambers

East Midlands

No5 Barristers' Chambers Planning Group invites you to join them at their Local Authorities Seminar Series which is taking place in London, Bristol, Leicester and Leeds. The Seminars consist of a morning session dedicated to Planning and Development Update...
→ View listing
HB Editorial Services Ltd 2016.