R (British Homeopathic Association and others) v NHS England [2018] EWHC 1359 (Admin)
The High Court has dismissed a claim for judicial review of NHS England's (NHSE) guidance that Clinical Commissioning Groups (CCGs) should no longer prescribe homeopathic remedies on the NHS. While the judgment largely restricts itself to the fairness of the consultation, it also considers the role of efficacy in NHS funding decisions.
Homeopathy is a complementary or alternative medicine which claims to heal the body by using highly diluted solutions of substances similar to those which caused the relevant symptoms. However, there is little scientific evidence to support this and homeopathy is not held in high regard by the majority of the scientific community. In 2010 the House of Commons Science and Technology Committee produced a report concluding that there was no evidence that homeopathy was effective and any effect in patients was due to the placebo effect (the 2010 Report). However the 2010 Report was criticised by a House of Commons Early Day Motion on the basis that local NHS service providers were best placed to determine patient need. In addition, homeopathic products have been available on the NHS for some time (and the current Royal London Hospital for Integrated Medicine was called the Royal London Homeopathic Hospital until 2010).
In July 2017 NHSE published a consultation proposing that a number of items (including homeopathic remedies) should no longer be routinely prescribed as part of primary care. The consultation referred, among other sources, to the 2010 Report. During the consultation the British Homeopathic Association (BHA) submitted evidence and met with the working party responsible for the consultation. As a result of this, the working group commissioned the NHS Specialist Pharmacy Service (SPS) to review the evidence; it found that "there was a lack of robust evidence of the clinical effectiveness of homeopathy". At the end of November 2017 NHSE decided to implement the proposals of the consultation and ceased to recommend the prescribing of homeopathy. As a result the BHA applied for judicial review, focusing on three grounds.
The first ground related to (i) how NHSE summarised the 2010 Report in the consultation and (ii) the reasons behind the proposals, which the BHA claimed were inaccurate and unfair. However, the Court found that it was clear from the consultation that NHSE proposed not to prescribe homeopathic remedies because of the lack of evidence in support; it was therefore clear that consultees should submit evidence. Furthermore, when the BHA submitted specific evidence, NHSE had commissioned SPS to review it.
The second ground argued that NHSE had effectively come to a decision prior to considering the responses to the consultation; this was based on a radio interview with the head of NHSE prior to the consultation, where he agreed with the presenter that "it would be absurd if anyone is prescribing homeopathic medicine". However, the Court noted that NHSE had sought as many responses to the consultation as possible and was entitled to come to a preliminary view on the evidence available at the time without necessarily closing its mind to the responses to the consultation.
The third ground related to the fact that the consultation was only run online, excluding some people from responding, and that the consultation response had not specifically considered the effect on elderly and disabled people. However, the Court noted that the objections to the consultation being online only had been made by people who had responded online; in any event, the decision on how to run the consultation had been made more than three months ago and as such was time barred. Furthermore, the BHA had submitted insufficient evidence to establish that NHSE should have considered that the outcome would particularly affect older people or those with disabilities.
A theme running through the application was that the consultation and publicity around it had focussed on homeopathy to the exclusion of the other products included in the consultation. However, the provision of homeopathic remedies through the NHS is significantly more controversial than many of the other products being considered.
This case is a further useful summary of the Gunning/Sedley criteria for fair consultations. Public bodies and those exercising public functions need to remain vigilant to ensuring a valid consultation process is undertaken including how they summarise evidence and consultation responses, do not have a closed mind prior to consultation and conscientiously consider responses. In decision making involving healthcare treatments there are also lessons about the expectations for evidence of efficacy in order to justify public funding.