Health technology appraisal and the courts: accountability for reasonableness and the judicial model of procedural justice

An empirical ethics study of the coherence of NICE technology appraisal policy and its implications for moral justification

BACKGROUND

As the UK's main healthcare priority-setter, the National Institute for Health and Care Excellence (NICE) has good reason to want to demonstrate that its decisions are morally justified. In doing so, it has tended to rely on the moral plausibility of its principle of cost-effectiveness and the assertion that it has adopted a fair procedure. But neither approach provides wholly satisfactory grounds for morally defending NICE's decisions. In this study we adopt a complementary approach, based on the proposition that a priority-setter's claim to moral justification can be assessed, in part, based on the coherence of its approach and that the reliability of any such claim is undermined by the presence of dissonance within its moral system. This study is the first to empirically assess the coherence of NICE's formal approach and in doing so to generate evidence-based conclusions about the extent to which this approach is morally justified.

METHODS

The study is grounded in the theory, methods and standards of empirical bioethics. Twenty NICE policy documents were coded to identify and classify the normative commitments contained within NICE technology appraisal policy as of 31 December 2021. Coherence was systematically assessed by attempting to bring these commitments into narrow reflective equilibrium (NRE) and by identifying sources of dissonance.

FINDINGS

Much of NICE policy rests on coherent values that provide a strong foundation for morally justified decision-making. However, NICE's formal approach also contains several instances of dissonance which undermine coherence and prevent NRE from being fully established. Dissonance arises primarily from four sources: i) NICE's specification of the principle of cost-effectiveness; ii) its approach to prioritising the needs of particular groups; iii) its conception of reasonableness in the context of uncertainty, and iv) its concern for innovation as an independent value.

CONCLUSION

At the time of analysis, the level of coherence across NICE policy provides reason to question the extent to which its formal approach to technology appraisal is morally justified. Some thoughts are offered on why, given these findings, NICE has been able to maintain its legitimacy as a healthcare priority-setter and on what could be done to enhance coherence.

Criteria for the procedural fairness of health financing decisions: a scoping review

Due to constraints on institutional capacity and financial resources, the road to universal health coverage (UHC) involves difficult policy choices. To assist with these choices, scholars and policy makers have done extensive work on criteria to assess the substantive fairness of health financing policies: their impact on the distribution of rights, duties, benefits and burdens on the path towards UHC. However, less attention has been paid to the procedural fairness of health financing decisions. The Accountability for Reasonableness Framework (A4R), which is widely applied to assess procedural fairness, has primarily been used in priority-setting for purchasing decisions, with revenue mobilization and pooling receiving limited attention. Furthermore, the sufficiency of the A4R framework's four criteria (publicity, relevance, revisions and appeals, and enforcement) has been questioned. Moreover, research in political theory and public administration (including deliberative democracy), public finance, environmental management, psychology, and health financing has examined the key features of procedural fairness, but these insights have not been synthesized into a comprehensive set of criteria for fair decision-making processes in health financing. A systematic study of how these criteria have been applied in decision-making situations related to health financing and in other areas is also lacking. This paper addresses these gaps through a scoping review. It argues that the literature across many disciplines can be synthesized into 10 core criteria with common philosophical foundations. These go beyond A4R and encompass equality, impartiality, consistency over time, reason-giving, transparency, accuracy of information, participation, inclusiveness, revisability and enforcement. These criteria can be used to evaluate and guide decision-making processes for financing UHC across different country income levels and health financing arrangements. The review also presents examples of how these criteria have been applied to decisions in health financing and other sectors.

Integrating health technology assessment and the right to health: a qualitative content analysis of procedural values in South African judicial decisions

South Africa's move towards implementing National Health Insurance includes a commitment to establish a health technology assessment (HTA) body to inform health priority-setting decisions. This study sought to analyse health rights cases in South Africa to inform the identification of country-specific procedural values related to health priority-setting and their implementation in a South African HTA body. The focus on health rights cases is motivated in part by the fact that case law can be an important source of insight into the values of a particular country. This focus is further motivated by a desire to mitigate the potential tension between a rights-based approach to healthcare access and national efforts to set health priorities. A qualitative content analysis of eight South African court cases related to the right to health was conducted. Cases were identified through a LexisNexis search and supplemented with expert judgement. Procedural values identified from the health priority-setting literature, including those comprising Accountability for Reasonableness (A4R), structured the thematic analysis. The importance of transparency and revision-two elements of A4R-is evident in our findings, suggesting that the courts can help to enforce elements of A4R. Yet our findings also indicate that A4R is likely to be insufficient for ensuring that HTA in South Africa meets the procedural demands of a constitutional rights-based approach to healthcare access. Accordingly, we also suggest that a South African HTA body ought to consider more demanding considerations related to transparency and revisions as well as explicit considerations related to inclusivity.

Health technology assessment and judicial deference to priority-setting decisions in healthcare: Quasi-experimental analysis of right-to-health litigation in Brazil

The constitutional right to health in Brazil has entitled patients to litigate against the government-funded national health system (SUS), claiming access to various health treatments including those excluded from the health system's benefits package. Courts have tended to rely on a single medical prescription to judge these cases in favor of individual patients and against the health system. The large volume of cases has had a substantial financial impact on the government's health budget and has created unfairness in accessing healthcare. To change courts' behavior, a new health technology assessment (HTA) body - CONITEC - was created in 2011. Its creation was accompanied by an administrative procedure that made decisions about the health system's benefits package more transparent, accountable, participative and evidence-informed. It was expected that this HTA system would bring more legitimacy to the government's priority-setting decisions and promote deference from the courts. This study tests whether Brazil's new HTA system succeeded in encouraging judicial deference by analyzing a stratified random sample of 13,263 court decisions for whether the existence of a CONITEC report resulted in less frequent court orders to provide treatment for individual litigants. The results show that the creation of CONITEC did not change courts' behavior; courts still decide in favor of patients in most cases. Indeed, even when there was a CONITEC report recommending against government funding for a particular healthcare treatment, the vast majority of the relatively few patients who were unsuccessful in obtaining a health benefit at their first court hearing later obtained a favorable decision after appealing to a higher court. This finding was confirmed through an interrupted time-series analysis that did not find an impact of having a CONITEC report on courts' willingness to override a government priority-setting decision. In fact, CONITEC was rarely cited in court decisions, even when litigants mentioned the existence of a CONITEC report.

NICE and Fair? Health Technology Assessment Policy Under the UK's National Institute for Health and Care Excellence, 1999-2018

The UK's National Institute for Health and Care Excellence (NICE) is responsible for conducting health technology assessment (HTA) on behalf of the National Health Service (NHS). In seeking to justify its recommendations to the NHS about which technologies to fund, NICE claims to adopt two complementary ethical frameworks, one procedural-accountability for reasonableness (AfR)-and one substantive-an 'ethics of opportunity costs' (EOC) that rests primarily on the notion of allocative efficiency. This study is the first to empirically examine normative changes to NICE's approach and to analyse whether these enhance or diminish the fairness of its decision-making, as judged against these frameworks. It finds that increasing formalisation of NICE's approach and a weakening of the burden of proof laid on technologies undergoing HTA have together undermined its commitment to EOC. This implies a loss of allocative efficiency and a shift in the balance of how the interests of different NHS users are served, in favour of those who benefit directly from NICE's recommendations. These changes also weaken NICE's commitment to AfR by diminishing the publicity of its decision-making and by encouraging the adoption of rationales that cannot easily be shown to meet the relevance condition. This signals a need for either substantial reform of NICE's approach, or more accurate communication of the ethical reasoning on which it is based. The study also highlights the need for further empirical work to explore the impact of these policy changes on NICE's practice of HTA and to better understand how and why they have come about.

The regulation of competition and procurement in the National Health Service 2015-2018: enduring hierarchical control and the limits of juridification

Since 1990, market mechanisms have occurred in the predominantly hierarchical National Health Service (NHS). The Health and Social Care Act 2012 led to concerns that market principles had been irrevocably embedded in the NHS and that the regulators would acquire unwarranted power compared with politicians (known as 'juridification'). To assess this concern, we analysed regulatory activity in the period from 2015 to 2018. We explored how economic regulation of the NHS had changed in light of the policy turn back to hierarchy in 2014 and the changes in the legislative framework under Public Contracts Regulations 2015. We found the continuing dominance of hierarchical modes of control was reflected in the relative dominance and behaviour of the sector economic regulator. But there had also been a limited degree of juridification involving the courts. Generally, the regulatory decisions were consistent with the 2014 policy shift away from market principles and with the enduring role of hierarchy in the NHS, but the existing legislative regime did allow the incursion of pro market regulatory decision making, and instances of such decisions were identified.

Access to treatment and the constitutional right to health in Germany: a triumph of hope over evidence?

Health technology assessment is frequently credited with making difficult resource allocation decisions in health care fairer, more rational and more transparent. In Germany, a constitutional 'right to health' allows patients to challenge decisions by sickness funds to withhold reimbursement of treatment excluded from public funding because of insufficient evidence of effectiveness. The ability to litigate was qualified by the Constitutional Court in its 2005 'Nikolaus decision' that sets out criteria to be applied to these cases. Treatment must be made available if (1) the condition is life-threatening, (2) no alternative treatment is available and (3) there is an indication that the treatment could benefit the patient. This paper examines how courts struggled to apply these criteria based on an analysis of cases of patients who sought treatment for cancer between 2005 and 2015, and explores the implications of applying a constitutional 'right to health' to treatment decisions.

Coverage Decisions and the Court: A Public Health Perspective on Glucosamine Reimbursement in Thailand

-Thailand achieves universal health coverage through the introduction of three benefit schemes: the Civil Servant Medical Benefit Scheme (CSMBS), Social Security Scheme, and Universal Coverage Scheme. The primary benefit package of these schemes includes all medicines referenced in the National List of Essential Medicines. However, the CSMBS pays for nonessential drugs (NEDs) for particular conditions.  The CSMBS's cost escalation prompted the Ministry of Finance to tightly control drug expenditure. In 2010, glucosamine-an NED-was prohibited from CSMBS reimbursement. Subsequently, a dispute was lodged at the Administrative Court by two CSMBS beneficiaries. The court ruled that glucosamine reimbursement should be reinstated in the CSMBS scheme based on two grounds: the Royal College of Orthopedic Surgeons of Thailand's clinical practice guidelines and an argument with reference to Article 78(8) of the 2007 Constitution mandating the state to provide appropriate benefits to government and state officials.  Our comments are based on two factors: (1) the integrity of evidence that the Court applied and (2) the ruling with reference to Constitution Article 78(8) as it conflicts with Article 51, which aims to ensure equal rights to health services by all citizens. Because court cases concerning health care coverage in Thailand may expand in the future, we call upon the public to discuss the following issue: whether the court should rule on the inclusion of particular interventions or whether it should focus on the integrity of the coverage decision-making process. Similar lessons can be drawn from the experiences of countries in Latin America and Europe. In any case, all concerned parties including the court should be equipped with a good understanding of the complexity of the country's health systems in either option.

Publish or be damned: Individual Funding Requests and the publicity condition

Many jurisdictions have processes to consider Individual Funding Requests but, with few exceptions, the decisions made with respect to these are not made public. Drawing upon Daniels and Sabin's account of the requirements of procedural justice, Accountability for Reasonableness, this paper considers several arguments for and against publishing individual funding request decisions. After briefly reviewing the case for publicity as a requirement of procedural justice and canvassing several arguments against publicity, we consider whether patient confidentiality justifies suppressing funding decisions. We claim that, with one possible exception, publication of individual funding request decisions does not raise concerns that are different in kind from those that apply to publication of legal judgments relating to healthcare, and that the protections instituted in that setting should be sufficient to allow publication of funding decisions. The discussion concludes with several cautionary notes.

Health economic evaluation in England

The 2010 National Health Service Constitution for England specified rights and responsibilities, including health economic evaluation for the National Institute for Health and Care Excellence (NICE) and the Joint Committee on Vaccinations and Immunisations. The National Screening Committee and the Health Protection Agency also provide advice to the Government based on health economic evaluation. Each agency largely follows the methods specified by NICE. To distinguish the methods from neoclassical economics they have been termed "extra-welfarist". Key differences include measurement and valuation of both benefits (QALYs) and costs (healthcare related). Policy on discounting has also changed over time and by agency. The debate over having NICE's methods align more closely with neoclassical economics has been prominent in the ongoing development of "value based pricing". The political unacceptability of some decisions has led to special funding for technologies not recommended by NICE. These include the 2002 Multiple Sclerosis Risk Sharing Scheme and the 2010 Cancer Drugs Fund as well as special arrangements for technologies linked to the end of life and for innovation. Since 2009 Patient Access Schemes have made price reductions possible which sometimes enables drugs to meet NICE's cost-effectiveness thresholds. As a result, the National Health Service in England has denied few technologies on grounds of cost-effectiveness.

Being 'rational' and being 'human': How National Health Service rationing decisions are constructed as rational by resource allocation panels

The English National Health Service Constitution states that patients have the right to expect all decisions about access to medicines and treatments to be made 'rationally'. Rationality in health care can be framed as instrumental, institutional or practical. In this article, we present a case example from an ethnographic study of the work of 'Individual Funding Request' panels to explore how rationality is enacted and accounted for in deliberations about the rationing of health care in the National Health Service. Our rhetorical analysis highlights how an embodied, practical rationality emerges as a significant aspect of rationality in practice, but at the same time has a problematic status in formal accounts of decision-making. We suggest that being both 'human' and 'rational' is a 'delicate balance' and creates a dilemma for Individual Funding Request panels. Aristotle's notion of phronesis provides a useful lens for theorising our observation of panel deliberations, and we argue for greater attention to the value of narrative ethics in helping us understand the challenges faced by resource allocators.

Link between process and appraisal in coverage decisions: an analysis with structural equation modeling

BACKGROUND

To achieve fair-coverage decision making, both material criteria and criteria of procedural justice have been proposed. The relationship between these is still unclear.

OBJECTIVE

To analyze hypotheses underlying the assumption that more assessment, transparency, and participation have a positive impact on the reasonableness of coverage decisions.

METHODS

We developed a structural equation model in which the process components were considered latent constructs and operationalized by a set of observable indicators. The dependent variable "reasonableness" was defined by the relevance of clinical, economic, and other ethical criteria in technology appraisal (as opposed to appraisal based on stakeholder lobbying). We conducted an Internet survey among conference participants familiar with coverage decisions of third-party payers in industrialized countries between 2006 and 2011. Partial least squares path modeling (PLS-PM) was used, which allows analyzing small sample sizes without distributional assumptions. Data on 97 coverage decisions from 15 countries and 40 experts were used for model estimation.

RESULTS

Stakeholder participation (regression coefficient [RC] =0.289; P = 0.005) and scientific rigor of assessment (RC = 0.485; P < 0.001) had a significant influence on the construct of reasonableness. The path from transparency to reasonableness was not significant (RC = 0.289; P = 0.358). For the reasonableness construct, a considerable share of the variance was explained (R (2) = 0.44). Biases from missing data and nesting effects were assessed through sensitivity analyses. Limitations. The results are limited by a small sample size and the overrepresentation of some decision makers.

CONCLUSIONS

Rigorous assessment and intense stakeholder participation appeared effective in promoting reasonable decision making, whereas the influence of transparency was not significant. A sound evidence base seems most important as the degree of scientific rigor of assessment had the strongest effect.

Courts and health care rationing: the case of the Brazilian Federal Supreme Court

The recognition that access to health care is a constitutional right in Brazil has resulted in a situation in which citizens denied treatments by the public health care system have brought lawsuits against health authorities, claiming that their right to health was violated. This litigation forces the courts to decide between a patient-centred and a population-centred approach to public health – a choice that forces the courts to assess health care rationing decisions. This article analyses the judgments of the Brazilian Federal Supreme Court in right to health cases, arguing that the Court's recent decisions have been contrary to their long-standing stance against rationing. In 2009, the Court organized a public hearing to discuss this topic with civil society and established criteria to determine when rationing would be legal. However, I argue that these criteria for health care rationing do not adequately address the most difficult health care distribution dilemmas. They force the health care system to keep their rationing criteria implicit and make population-centred concerns secondary to individual-centred ones.

European drug reimbursement systems' legitimacy: five-country comparison and policy tool

OBJECTIVES. In a democratic system, decision makers are accountable for the reasonableness of their decisions. This presumes (i) transparency, (ii) relevance of the decision criteria, (iii) revisability of decisions, and (iv) enforcement/regulation. We aim to (i) evaluate the extent to which drug reimbursement decision-making processes in different contexts meet these conditions and (ii) develop, starting from these findings, a framework for improving the transparency and the relevance of used decision criteria. METHODS. We evaluated the Austrian, Belgian, French, Dutch, and Swedish drug reimbursement systems. Based on this evaluation, we developed a framework for improving the transparency of drug reimbursement decision-making processes. It makes explicit the questions often addressed implicitly during decision-making processes as well as criteria for answering each question. RESULTS. Transparency of appraisal processes varies across systems. Justification with explicit criteria is generally limited. Although relevant criteria are similar across systems, their operationalization varies and their role in the appraisal process is not always clear. All systems seem to implicitly address five key questions, relating to (i) the medical, therapeutic, and societal need for treatment; (ii) preparedness to pay for treating the condition as a principle and (iii) for using the treatment under consideration; (iv) preparedness to pay more compared with alternatives; and (v) actual willingness to pay from public resources. CONCLUSIONS. Transparency of the appraisal process can be improved by using an explicit decision framework. Systematic use of such a framework enhances consistency across decisions, allows justification of value judgments, and thus enhances legitimacy of societal decision making.