Primary care groups and the right to prescribe.

In matters of NHS funding, politicians tend to say one thing and health economists another. Governments commit themselves to the Hippocratic ethic that patients should be treated solely on the basis of need. But economic reality has always required us to make hard choices between deserving patients. Today we require a legal dimension to this tension. This article examines the general practitioner’s legal duty to prescribe medicines. The terms of service of general practitioners impose a duty to prescribe on the basis of need. Yet, primary care groups will be expected to operate within a “cash limited envelope.” Is this duty to prescribe dependent on patients’ needs or limited by available resources? Will it be lawful to deny access to effective but expensive medicine on grounds of cost? As patients litigate for NHS resources, general practitioners need to know who is to blame when patients are denied access to expensive medicines. What are the rights and duties of general practitioners to prescribe medicines to their patients? Since the start of the NHS doctors have been assured that the principle of legitimate clinical freedom will be preserved. In 1948, Ernest Bevan promised doctors “all the facilities, resources, apparatus and help I can, and then to leave you alone as professional men and women to use your skills and judgment without hindrance.” And in the new white paper, the present government “has committed itself to the historic principle of the NHS: that if you are ill or injured there will be a national health service there to help; and access to it will be based on need and need alone.” But the pressure imposed by scarce resources is not always consistent with political rhetoric. In addition, the proposals to create primary care groups will require general practitioners to manage NHS resources “within [a] single cash limited envelope” and to make hard choices between deserving cases. We are familiar with health authorities being challenged before the courts in this regard. General practitioners, however, have a very different and more intimate legal relationship with patients, which is governed, among other things, by their terms of service. If primary care groups require general practitioners to undertake some of the resource management functions of health authorities, what becomes of the right to prescribe? To what extent, if any, can the “historic” commitment of the NHS survive in primary care? In this article, I consider the problem of expensive medicines; the duty to prescribe and the terms of service; what patients’ “needs” are; and primary care groups and the National Health Service (Primary Care) Act 1997.