On 20 December 2011 the National Health Service (Right to Treatment) Bill proposed by Hugh Bayley MP was given its first reading in the House of Commons. The bill, which aims to combat the so-called NHS postcode lottery, would give NHS patients a right to receive the treatment they require. NHS patients would be given access to any medical treatment prescribed by a doctor, unless the Secretary of State for Health or the National Institute for Health and Clinical Excellence objected. This article looks at the proposed bill in the context of the current state of the law.

The current position

Under section 3 National Health Service Act 2006, the Secretary of State owes a public duty to provide healthcare services to such an extent as he considers necessary to meet all reasonable requirements. Section 7 of the 2006 Act allows the Secretary of State to direct a Primary Care Trust (PCT) to carry out any of his functions relating to the health service.

PCTs have responsibility for the administration of the provision of healthcare services within their areas. They do this by commissioning health services from NHS providers and other organisations. Under sections 229 and 230 of the 2006 Act, they are obliged to break even fi nancially and are prohibited from exceeding the annual limit of resources allocated to them by the Secretary of State.

In order to allocate healthcare resources eff ectively, PCTs carry out a process of prioritisation, weighing up a number of diff erent factors including patient needs and choices and their own fi nancial pressures. Through this process, PCTs arrive at a general, standardised policy for the provision of treatments against which patients are assessed. Patients wishing to challenge the standard policy can make an Individual Funding Request (IFR), requesting that their PCT fund healthcare which falls outside the range of services and treatments that it has agreed to commission.

In our Medical Update of November 2011 we featured two funding cases brought against North Staff ordshire PCT and Derbyshire PCT respectively. In both cases it was alleged on behalf of the patients that refusals of treatment infringed their human rights. Both cases failed, as have other similar arguments for a right to treatment. Historically there has been an acceptance by the courts that PCTs, with limited budgets, are forced to make diffi cult choices about which patients should and should not receive treatment.

If the proposed bill were to be passed patients may, one day, be able to argue that they have a right to receive treatment deemed clinically appropriate for them, even where their PCT does not have the resources available to provide that treatment.

Postcode lottery

The introduction of the new bill is a reaction against what has been coined the “NHS postcode lottery”; the concept that healthcare, ie specifi c drugs and treatments available to NHS patients in the UK is determined, to a large extent, by the area in which they live. This was an issue that was raised in the case against North Staff ordshire PCT, where it was claimed that if the patient had lived less than a mile away in Stoke-on-Trent, he would have been entitled to gastric band surgery on the NHS.

The NHS Atlas of Variation 2011, a government analysis of regional treatment, has shown wide regional disparities in patient treatment within the UK, with the resultant inequalities among patients. The most stark regional contrast is in the rate of prescribing anti-dementia drugs, with patients in areas such as North Lancashire being prescribed 25 times as many treatments and tablets than those in Kent. Attention has also been drawn to regional disparities in access to IVF treatment for infertile couples, and facet back injections for those suff ering from chronic back pain.

Some variation in treatment is explicable and understandable, since treatment rates are dependent on factors such population age and wealth, and patient uptake. However, the Health Minister Andrew Lansley has told GPs that these factors are not suffi cient to explain the considerable degree of variation between regions. He has urged clinicians and commissioners to examine the data in order to identify variations in prevalence, spend, outcomes and service use.

Mr Bayley anticipates that the government’s reforms to the NHS under the Health and Social Care Bill will further exacerbate the postcode lottery. The plans to replace PCTs with GP-led clinical commissions will create greater scope for local variation. Mr Bayley hopes the new bill will remove the inequality and uncertainty faced by patients attempting to access healthcare. However, the problem remains that the reduction in funding to the NHS will inevitably lead to treatments being rationed in some areas.

The new bill

In a recent article Mr Bayley claimed that his bill will do three things: 

  • ensure that any medical treatment prescribed by a doctor will be provided by the NHS unless the Secretary of State for Health, or his medical and scientifi c advisors at the National Institute for Health and Clinical Excellence, say no;
  • establish a national register of all cases where treatment is refused, to act as a check on creeping privatisation of NHS services; 
  • give patients a right of appeal if treatment is denied.

The aim of the bill is laudable - to rebalance the inequalities caused by the postcode lottery, making things fairer for patients. The premise seems simple - if a doctor recommends a specifi c course of treatment, the patient will have a legal right to that treatment irrespective of their postcode. How this would be achieved on a day-to-day basis, given the restricted nature of NHS funding, is manifestly unclear. If the bill is successful, it could have very signifi cant implications both for patients and for the provision of NHS healthcare.