A court ruling has told Clinical Commissioning Groups (CCGs) that they cannot simply choose not to follow guidance from the National Institute for Health and Care Excellence (NICE) because they disagree with it, even where there is no statutory duty to do so.

The ruling has been made by the Administrative Court against a CCG which had refused to pay for oocyte preservation for a woman with Crohn’s disease before she was due to receive bone marrow transplantation and chemotherapy in an attempt to bring her disease into remission.

The CCG’s policy was not to grant funding for this procedure unless the applicant had any exceptional clinical circumstances, which it did not consider this patient to have.

In February 2013, NICE published guidance recommending that oocyte preservation should be funded. However, this guidance is not one of the two types of recommendations – technology appraisal (TA) and specialised technology appraisal (STA) – with which CCGS must comply. Instead, it was issued under a general power of the NICE Regulations for the Institute to give advice or guidance, or to provide information or make recommendations, about any matter which relates to its core activity. The Regulations say nothing about any duty on CCGs to comply with this type of guidance so, on its face, it is non-binding.

Moreover, the CCG has adopted a policy from this month which says that the procedure sought by the applicant should be refused save in exceptional circumstances.

The applicant’s challenge to the refusal of the funding was rejected by the court, but the judge also found that the CCG’s decision to establish a policy which was inconsistent with the NICE guidance was unlawful – and this part of the judgement is important, comments Kieran Laird, an associate in the public law and regulation team at international law firm Wragge & Co.

“The issue in this case was whether CCGs may legitimately disagree with NICE on matters concerning the current state of medical science. It was NICE’s view that the evidence base supported the effectiveness of the procedure, and the CCG’s sole basis for not following NICE’s recommendation was that it disagreed,” he says.

Giving his ruling, the judge found that the CCG had failed fully to grapple with the clinical evidence that underlay the NICE guidance and the fact that the Institute had described it as a “strong” recommendation, Mr Laird notes.

This decision makes clear the court’s view that, in the absence of special factors which exceptionally justify departure from such guidance, the default position is that CCGs should follow it, even when there is no statutory obligation to do so; disagreement with NICE guidance is not a valid reason for refusing to follow it, he writes.

“This finding may come as a surprise to CCGs,” Mr Laird comments.