NICE AND JUDICIAL REVIEW: ENFORCING 'ACCOUNTABILITY FOR REASONABLENESS' THROUGH THE COURTS?

摘要

As the National Institute for Health and Clinical Excellence (NICE) moves towards the 10th anniversary of its establishment, it finds itself in the somewhat paradoxical position of being at the same time widely admired as a model for decision-making on the introduction of new technologies to a health system, and heavily criticised as an institution whose guidance functions to ration access to often spectacular advances in medicine which promise to yield significant benefits to particular groups of patients. Surprisingly, however, despite its long-lived status both as a bete noire of sections of the British media and as a significant regulatory barrier for the pharmaceutical industry, the Institute has only recently experienced the first challenge to its technology appraisal guidance in the courts. The decision of the Administrative Court in Eisai Limited v. National Institute for Health and Clinical Excellence (Eisai) therefore provides the first opportunity to test the validity of the thesis, articulated by the present author in the pages of this journal in 2002,1 that the judicial review jurisdiction possesses the potential to assist in the task of addressing the 'legitimacy problem' which, it is claimed, afflicts those bodies whose work has an impact upon the allocation of scarce resources for healthcare.