IVF
It is estimated that infertility affects 1 in 7 heterosexual couples in the UK. Since the original NICE guideline on fertility published in 2004 there has been a small increase in the prevalence of fertility problems, and a greater proportion of people now seeking help for such problems.
In a striking letter published on 18 June 2013 in the BMJ entitled, “NICE promises on infertility and caesarean section are unmet” from Guy’s and St. Thomas’ Hospital, Lawrence Mascarenhas (a consultant obstetrician and gynaecologist), Zachary Nash (medical student), and Bassem Nathan (consultant surgeon), describe that NICE ‘promises on infertility and caesarean section are unmet’. Mr Mascharenhas and colleagues argue that “Current underfunding of the NHS means that some National Institute for Health and Care Excellence (NICE) guidelines are unachievable”. According to Matthew Limb previously, writing in the BMJ, leaders of NHS organisations in England have voiced grave warnings about how the build up of financial pressures is affecting the care of patients (Limb, 2013). Current updated NICE guidelines (CG156) recommend that women under 42 years with unexplained infertility should be offered three cycles of in vitro fertilisation funded by the NHS. Others state that all pregnant women should be able to choose an elective caesarean without obstetric or psychological indications.
The authors of this letter in the BMJ proposed that this,
“results in raised expectations that cannot be met and a flurry of referrals of disappointed women to the private sector.”
The authors specifically report that:
“Our anonymous telephone research involving all London maternity units two months ago showed that commissioners are unwilling to fund caesareans at maternal request. It also showed that women with previous caesareans are being pushed down the road of a trial of vaginal birth because of targets for reducing these operations. This causes great disappointment and anxiety for these women, who are often met with the clinician’s response “operations are more dangerous,”4 which is contrary to NICE guidance.
Furthermore, the postcode lottery for NHS funded in vitro fertilisation is well documented. We believe that these updated NICE guidelines will perpetuate the belief that these guidelines are only implementable for a
select educated few who can successfully argue their case with professionals. Others have called for legal clarity in this respect.”
The area of “judicial review” in civil litigation is the procedure by which the courts examine the decisions of public bodies to ensure that they act lawfully and fairly. On the application of a party with sufficient interest in the case, the court conducts a review of the process by which a public body has reached a decision to assess whether it was validly made. The court’s authority to do this derives from statute, but the principles of judicial review are based on case law which is continually evolving. Judicial review is very much a remedy of last resort. Although the number of judicial review claims has increased in recent years, it can be difficult to bring a successful claim and a court may refuse permission to bring a claim if an alternative remedy has not been exhausted. A claimant should therefore explore all possible alternatives before applying for judicial review.
Judicial review has a number of heads. For example, under the head of “legitimate expectation“, a public body may, by its own statements or conduct, be required to act in a certain way, where there is a legitimate expectation as to the way in which it will act. A legitimate expectation only arises in exceptional cases and there can be no expectation that the public body will act unfairly or beyond its power.
Judicial review, like arguably access to medicine, has been attacked by the current Government. The issue of infertility treatment illustrates, it can be argued, a national disgrace in poor access to both the medicine and the law. In an address to the CBI, David Cameron vowed to cut “time-wasting” caused by the “massive growth industry” in judicial reviews. He apparently wants fewer reviews, specifically for those challenging planning, and he wants to shorten the limitation period for bringing a review. This is all in aid of a new “growth cabinet” – cutting “red tape” and “bureaucratic rubbish” and “trying to speed decision making”.
Martha Gill writing in the New Statesman has argued that,
“At the moment, a judicial review is one of the only ways by which the courts can scrutinise the decisions of public bodies. Legal Aid is available for it – prisoners, for example, can bring judicial reviews against decisions of the parole board. So there are the cons – disempowering people who didn’t have much power in the first place, and increasing opportunities for public bodies to overstep the mark, unchallenged. What of the pros? Cameron argues that the judicial review industry is growing, holding up progress and costing money.”
Because of the “silo effect”, medics will have tended to notice on their watch a decline in universality and comprehensive nature of the NHS, with a focus on section 75 NHS regulations emphasising competitive tendering, but will be largely uncognisant of the battles the legal profession are facing of their own in the annihilation of high street legal aid services and cuts in judicial review. This letter in the BMJ from a leading Consultant’s firm at Guys’ and St.Thomas’ here in London demonstrates what a mess the confluence of these two policies, pretty horrific separately, can lead to.
References
Limb, M. (2013) Current financial pressures are worst ever, say NHS chiefs, BMJ, Jun 3, 346. f3616.
Mascharenas, M., Nash, Z., and Nathan, B. (2013) Letter: NICE promises on infertility and caesarean section are unmet, BMJ, Jun 18, 346.
