European Union

Secretary of state restricting prescription of drug on NHS - decision outwith scope of EU Transparency Directive - no requirement for non-political analysis of competing priorities or explanation

R (Pfizer Ltd) v Secretary of State for Health: CA (Lords Justice Simon Brown, Buxton and Carnwath): 6 November 2002

The secretary of state decided to maintain the policy restricting the circumstances in which certain drugs, most notably the applicant's product sildenafil (Viagra), could be prescribed on the NHS for the treatment of erectile dysfunction (impotence).

The restriction limited such prescriptions to those already being treated for impotence prior to September 1998, those suffering also from certain specified medical conditions and those being treated by hospital specialists.

The applicant sought judicial review of the decision.

The judge dismissed the application.

The applicant appealed.

David Pannick QC and Michael Fordham (instructed by Arnold & Porter) for the applicant; Michael Beloff QC and Dinah Rose (instructed by the solicitor, Department of Health) for the secretary of state.

Held, dismissing the appeal, that affordability, in the sense of choosing between competing priorities as to where NHS funds should be allocated, was a political decision to be taken by the government; that, consequently, when the secretary of state made a judgment to restrict the prescription on the NHS of any product he was not required by article 7 of Council Directive 89/105/EEC (the Transparency Directive) to conduct analysis of competing priorities on a non-political basis, nor to conduct any other form of analysis or explanation; and that, accordingly, the decision to restrict the prescription of the applicant's drug was not susceptible to challenge under the Directive.