Your may appeal from any refusal by your Clinical Commissioning Group (“CCG”) Individual Funding Request (“IFR”) Panel or NHS England IFR Panel to the Appeals Panel of your CCG (or in Scotland Appeals Panel of the Local Health Board (“LHB”) or the Appeals Panel of NHS England.
If your Appeal fails may you either (a) complain to the Health Ombudsman or (b) appeal to the High Court by way of Judicial Review.
Following campaigning by www.medlaw.eu with the Rarer Cancer Forum there is now a legal right since 1 April 2009 to a written reason for a refusal of both the initial decision and an IFR Panel decision. A copy of the authority for this legal right is found on the Resource Toolkit under “NHS Guidance”. A proper or adequate written reason for refusal does not need to be lengthy but it should deal with the major and important issues involved and importantly state why you have been refused. It is unlikely that a letter simply stating “You were not exceptional” would be an adequately reasoned letter.
What is an IFR Appeal Panel?
An IFR Appeal Panel is group made up from and with the authority of the CCG Executive or the higher management of NHS England. It is tasked to look at the procedure adopted by the IFR Panel to check it was properly followed.
The main point to remember is that Appeals here are not really about what is termed “the merits” of the refusal or decision. That is, the IFR Appeal panel members will not be looking to change the decision simply because they may feel that they would have funded the treatment or that they think you deserve the treatment in some vague or unspecified way. The Appeal panel members are not replacing the views of the Application IFR Panel with their own.
There is usually an explanation of what the Appeal Panel are looking for provided by the PCT or LHB.
Sometimes it is explained in words similar to the following as:
“Whether the decision was irrational or wrong in law or took into account facts it ought not to have taken into account or failed to take into account facts which it should have taken into account.”
The main concern for the IFR Appeal panel is whether the Application IFR Panel went through a fair following of their IFR process. An IFR Appeal can include reference by you to as to whether the IFR Panel had all the relevant material in front of them or whether they properly understood the evidence and the issues. You will probably need to see their Minutes of meeting (if they kept any) to find out what they discussed and whether they understood it properly.
Before bringing an Appeal, you will need the support of the Consultant or perhaps even another Consultant as an independent third party view.
You may ask for a second opinion on the NHS and this may be obtained outside your PCT or LHB area. A second opinion is still not a right on the NHS but the ability to ask for one exists if there is clinical need and you will not usually be refused if you give sound reasons for needing one. Sometimes the second opinion is on an area of medicine not covered by the first Consultant. If the appeal panel agreed with you they may well decide to put the matter back before the IFR Application panel with the new evidence.
There will however, be inevitable delays if you wait for an NHS second opinion. In reality, due to constraints of time, you may have to privately seek a second opinion in order to speed up the process.
To see further guidance, use the pages on Appeals in the booklets “Treatment We Need” and “Your Patient’s Right to Treatment” and use the pro forma letters in the back of the “Treatment We Need” booklet. Do not just send the pro forma letters as they stand – you will need to delete the irrelevant parts and include some of your own medical and personal details.
A number of people contact their solicitors or MP at this stage in preparation for the next stage which would be a complaint to the Ombudsman or an application for Judicial Review to the High Court.
Please contact us by clicking HERE for more information on the appeal process