NHS refusal to fund recommended treatment

This is a question that comes up frequently, and the short answer is yes, the NHS can refuse to fund a treatment even where your consultant recommends it, but there are important limits on how and when it can do so, and you have routes to challenge such a decision.

Legal framework:

The duty to provide NHS services sits primarily with Integrated Care Boards (ICBs), which replaced Clinical Commissioning Groups in July 2022 under the Health and Care Act 2022. ICBs must arrange for the provision of services to the extent they consider necessary to meet the reasonable requirements of the people for whom they are responsible. This gives ICBs a degree of discretion, but that discretion is not unlimited.

When can the NHS lawfully refuse to fund a recommended treatment:

1. The treatment is not routinely commissioned. ICBs publish commissioning policies setting out which treatments they will and will not fund as a matter of routine. Some treatments are subject to prior approval or are classified as procedures of limited clinical value.

2. NICE guidance. Where NICE has issued a positive Technology Appraisal recommending a treatment, ICBs are legally required to fund it, usually within three months of the guidance being published. However, where NICE has not appraised a treatment, or has issued only a Clinical Guideline rather than a Technology Appraisal, the position is different and the ICB has more discretion.

3. The treatment is considered experimental or not cost-effective. ICBs are entitled to take account of cost-effectiveness and the evidence base when making commissioning decisions, provided they do so rationally and consistently.

4. NHS England specialised commissioning. Some treatments fall under NHS England's direct commissioning responsibility rather than the ICB. In those cases, it is NHS England's policies that apply.

Individual Funding Requests (IFRs):

Where a treatment is not routinely commissioned but your consultant believes you should receive it, the usual route is for your consultant to submit an Individual Funding Request to the ICB. The IFR process requires you to demonstrate clinical exceptionality, meaning there is something about your particular case that distinguishes you from others in the same clinical group and justifies funding outside the normal policy.

This is a high threshold. Simply showing that the treatment would benefit you is generally not enough. You need to show that your circumstances are materially different from those of other patients with the same condition.

The ICB must have a transparent and fair IFR process and must give reasons for any refusal.

Grounds on which a refusal can be challenged:

1. Failure to follow the ICB's own published policy or IFR procedure.
2. Irrationality, meaning the decision is one that no reasonable body could have reached on the evidence.
3. Failure to take into account relevant considerations, such as your consultant's clinical opinion or the available evidence.
4. Taking into account irrelevant considerations, such as pure cost alone without proper clinical assessment.
5. Breach of the public sector equality duty under section 149 of the Equality Act 2010, for example where the refusal disproportionately affects people with a protected characteristic such as disability.
6. Breach of the requirement to fund NICE Technology Appraisal approved treatments.

Practical steps if funding is refused:

1. Ask for the decision in writing with full reasons.
2. Check whether a NICE Technology Appraisal covers the treatment, because if it does, the ICB is legally obliged to fund it.
3. Ask your consultant to submit an IFR if one has not already been made, and ensure it sets out clearly why your case is clinically exceptional.
4. If the IFR is refused, use the ICB's internal review or appeal process. Most ICBs have a two-stage IFR process.
5. Make a formal complaint through the NHS complaints procedure if you believe the process was unfair or the decision was flawed.
6. Contact the Parliamentary and Health Service Ombudsman if the complaint is not resolved satisfactorily.
7. Seek judicial review in the Administrative Court as a last resort, on the grounds that the decision was unlawful, irrational, or procedurally unfair. Judicial review must normally be brought promptly and in any event within three months of the decision. Legal aid may be available depending on your means and the merits.

Important practical considerations:

Judicial review is expensive, stressful, and uncertain. It does not allow a court to substitute its own clinical judgement for that of the ICB. The court can only assess whether the decision-making process was lawful. In practice, a well-prepared IFR supported by strong clinical evidence from your consultant, combined with effective use of the complaints process, often achieves a better and faster result than litigation.

It is also worth checking whether there is a relevant clinical trial you could access, or whether your consultant can prescribe the treatment through a different funding route such as a compassionate use or early access scheme if the treatment is a medicine.

If you can share more about the specific treatment, the condition, and what you have been told so far, I can give you more targeted guidance on the best approach.