NICE chief Sir Michael Rawlins has advised legal action if National Health Service trusts refuse access to medicines that have been endorsed by the cost watchdog.

Writing in the Health Services Journal last week, Sir Rawlins claimed that "numerous trusts are acting unlawfully" by "denying patients an innovative and cost-effective treatment, recommended by NICE, that significantly improves their quality of life".

His comments were spurred by a Royal National Institute for the Blind investigation, which found that a significant number of NHS trusts are either refusing or restricting access to Allergan's Ozurdex (dexamethasone intravitreal implants) for patients with retinal vein occlusion, despite this being a NICE-approved therapy.

This should have been available to all patients from November 2011, but according to Sir Rawlins "delaying tactics" - through disputes between primary care trusts and hospital trusts over who should be footing the bill for treatment - are being employed by those not wishing to "use their resources in this manner".

Sir Rawlins said he has advised RNIB head Steve Winyard to make an application to the High Court and seek Judicial Review over the failure of certain trusts to provide access to this product.

"The court would unquestionably uphold the claim, not that any case would ever reach the courts," he writes in the HSJ, as presumably those trusts acting unlawfully would not let things get that far.

In addition, he has called on clinical colleagues "to start exercising leadership and 'whistle-blow' when their trusts fail to meet their legal obligations", to ensure that patients get access to the medicines deemed value for money by the Institute.

In response to his comments, NHS Confederation deputy chief executive David Stout said "the last thing we want to see happen is a patient suffering unnecessarily as a result of what appears to be, in the example [Rawlins] cites, a dispute between NHS organisations about who should be paying for such care".

Finite money

But he also went on to stress that "the reality is that every NHS organisation has a finite amount of money available," and that "every new treatment covered and funded under a NICE technology appraisal means fewer resources for other treatments".

"NHS organisations are faced with the difficult challenge of achieving the best outcomes and highest quality care for patients while balancing their budgets," he points out, and calls for a "wider debate" about the NHS' unprecedented financial challenge.

"We need to be open and honest with the public about what the consequences of this financial challenge are, and the fact that trade-offs will be required if we are to improve standards of care while keeping the NHS affordable," he said.

JOIN THE DEBATE: The motion for this year's PharmaTimes Great Oxford Debate, taking place on Thursday 20 September, is 'Patients have the right to the best medicines, regardless of cost'. 

Proposing the motion are Professor Richard Sullivan, Director, Institute of Cancer Policy and member of the Kings Health Partners Integrated Cancer Centre, Stephen Whitehead, Chief Executive, ABPI, and Eric Low, OBE, Chief Executive, Myeloma UK.

Opposing will be the Rt Hon Stephen Dorrell, MP, Chairman of the Health Select Committee, Professor Mike Pringle, President Elect, RCGP, and Laura Weir, Head of Policy & Campaigns, MS Society and Chair, Patients Involved in NICE (PIN).

Click here for more information on the event and to book tickets.