Homeopathy and the NHS

The High Court recently rejected a legal challenge[1] by the British Homeopathic Association (BHA) to overturn NHS England’s (NHSE) decision to no longer fund homeopathy. The BHA applied for a judicial review on 20 October 2017 following NHS England’s consultation and subsequent decision to implement the consultation proposals.

What did the consultation conclude?

On 21 July 2017, NHSE published a consultation titled ‘Items which should not routinely be prescribed in primary care’.

Following the consultation, NHSE issued guidance to Clinical Commissioning Groups (CCGs) recommending that prescribers in primary care (for example GPs) should not prescribe homeopathic treatments as a new treatment for any patient. It also recommended that GPs should be supported in de-prescribing homeopathic treatments for all patients for whom they are currently being prescribed.

In its guidance, NHSE defines ‘homeopathy’ as the treatment of patients ‘with highly diluted substances that are administered orally’, which is ‘of low clinical effectiveness, where there is a lack of robust evidence of clinical effectiveness or there are significant safety concerns.’

The consultation relied on the Specialist Pharmacy Service’s (SPS) review[2], which found that there was no clear or robust evidence base to support the use of homeopathy in NHS.

In contrast, the BHA had submitted that ‘homeopathy is a low cost treatment with ‘amazing patient outcomes”. It also sought to summarise what it considered to be a growing evidence base supporting the effectiveness of homeopathy.

What did the Court hear?

The BHA initially made an application to the Court to challenge NHSE on nine grounds. This included the contention that ‘the seriously unbalanced and inaccurate views NHS England expressed in relation to homeopathy and/or the decision based on them are in the circumstances irrational’. Before the hearing, however, the BHA decided not to pursue this ground, amongst several others.

On the second day of the hearing, the BHA also withdrew the ground that NHSE has acted unfairly in depending on the SPS report in rejecting the clinical evidence in favour of homeopathy treatment by relying so heavily upon the Australian NHMRC 2015 Report.

Ultimately, the BHA challenged NHSE’s consultation on four grounds:

  1. Failure to consult fairly
  2. Failure to consult at the proper time
  3. Breach of the public sector equality duty
  4. No power to issue guidance[3] (the vires ground)

What did the Court conclude?

  1. Failure to consult fairly

The NHSE’s consultation document presented a fair and balanced view of the information required for a lawful consultation.

  1. Failure to consult at the proper time

There was no evidence of bias or predetermination on NHSE’s part and he was satisfied that it consulted at a correct time.

  1. Breach of the public sector equality duty

NHSE was entitled to conclude that the guidance would not have an adverse impact on the discharge of the duty of equality. On the contrary, it would enable patients to have access to the most effective medications to achieve the best outcomes.

  1. No powers to issue guidance

The guidance was clearly a part of NHSE’s functions.

In summary, he stated: ‘I consider that the grounds of challenge advanced at this hearing are arguable, albeit in the case of the vires ground, only just arguable … Accordingly this claim is dismissed.’

Why is this important?

Earlier in the year, NHSE published guidance[4] on over the counter prescriptions. The guidance lists 35 minor, short-term conditions for which over the counter medicines should not routinely be prescribed. NHSE says that this could save around £100m per year.

In respect of homeopathy, the NHS chief, Simon Stevens, said:[5]

‘There is no robust evidence to support homeopathy which is at best a placebo and a misuse of scarce NHS funds. So we strongly welcome the High Court’s clear cut decision to kick out this costly and spurious legal challenge.’

Spending on homeopathy prescriptions accounted to £92,000 last year.[6]

The decision does not prohibit the public from buying homeopathic treatments over the counter. Although, it is no longer available on the NHS, there are no regulations prohibiting medical professionals from prescribing it privately.

Comment

The General Medical Council in its ‘Good Medical Practice’  guidance[7] states that doctors must ‘provide effective treatments based on the best available evidence’. Similarly, the General Dental Council’s ‘Standards for the Dental Team’[8] states that dentists must ‘Provide good quality care based on current evidence and authoritative guidance’.

Despite this, there are currently no restrictions prohibiting use of homeopathy by these professionals.

Given the NHS’s position on homeopathy, it is somewhat surprising that there appears to not have been any consideration of whether, for example, registered medical or dental practitioners could be in breach of regulatory guidance in privately prescribing remedies that, on one view, could be said to not be in accordance with those professional obligations.

For more information or guidance, please contact:

William Childs
Partner
T. 
020 7227 6722
E. 
william.childs@rlb-law.com

Ilja Balkus
Trainee Solicitor
T. 020 7227 6748
E. ilja.balkus@rlb-law.com

Footnotes
[1] http://www.bailii.org/ew/cases/EWHC/Admin/2018/1359.html
[2] https://www.england.nhs.uk/wp-content/uploads/2017/11/sps-homeopathy.pdf
[3] Under S. 14Z8 of the National Health Service Act 2006
[4] https://www.england.nhs.uk/publication/conditions-for-which-over-the-counter-items-should-not-routinely-be-prescribed-in-primary-care-guidance-for-ccgs/
[5] https://www.england.nhs.uk/2018/06/nhs-england-welcomes-homeopathy-court-ruling/
[6] http://webarchive.nationalarchives.gov.uk/20180328130852tf_/http://content.digital.nhs.uk/catalogue/PUB23631/pres-cost-anal-eng-2016-rep.pdf/
[7] https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/good-medical-practice/domain-1—knowledge-skills-and-performance#paragraph-14
[8] https://www.gdc-uk.org/professionals/standards


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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