As the debate over NHS top-ups rages on, there is a real possibility that no workable solution will emerge. Corinne Slingo and Ian Cooper explain the legal background

The issue of whether or not NHS patients should be allowed to top-up their NHS care by paying for their own cancer drugs, while seeking the balance of their cancer treatment from the NHS, continues to fuel public debate. Does the answer lie around the corner, as we await sight of the Richards review, due in October 2008?

The NHS has limited resources. The difficult task faced by NHS bodies such as primary care trusts is to ensure that these resources are applied to the maximum benefit of the population. There are many licensed medicines that patients and doctors would like to use but that are not funded by the NHS due to concerns about their cost-effectiveness (i.e. whether a drug produces sufficient benefits to the patient to be worth its cost to the NHS).

By law, NHS services must be free of charge, except where Parliament has expressly stated that a charge may be made (for example, prescription charges). Therefore, as the law stands, it is not possible for an NHS organisation to agree to purchase a high-cost cancer drug and then seek to recover the cost from the patient by way of a top-up payment.

Episodes of care

It is also not currently possible from a policy perspective for a patient to side-step this legal hurdle by paying for the drug themselves and seeking associated care from the NHS. The Department of Health's policy is not to allow a patient to be a private patient and an NHS patient in the same clinical episode. A patient can, however, be a private patient and then an NHS patient provided there is a defined line between the two episodes of care. For example, a patient may undergo an MRI scan privately and then have follow-up treatment within the NHS.

The difficulty with the present policy is that the term "clinical episode" is not clearly defined. However, the rationale behind the policy is clear. A change in policy could lead to two patients with the same condition, on the same NHS hospital ward, receiving different treatment based solely on their personal financial circumstances: a two-tier NHS.

Under review

In addition to the swathe of commentators on this issue, from the British Medical Association to the King's Fund, there is a growing public demand for the NHS to evolve so as to allow patients to top-up their NHS provision if they choose to do so. It was in response to this and a series of high-profile cases involving perceived unfairness that the government commissioned a review of the issue, led by national clinical director for cancer Mike Richards.

The options for finding a solution must lie within primary and secondary legislation. However, the fear of establishing a two-tier system of healthcare in the UK, which unsettles the founding principles of the NHS, may prove to be an unassailable hurdle. The risk that there is in fact no workable solution that overcomes the fundamental conflict on this issue is very real. Never has the tension between the patient choice agenda, the aspirational quality and access vision for the next 10 years according to Lord Darzi, and the ability to maintain the unique principles and advantages of the NHS been more keenly felt than on this emotive issue.

We wait with bated breath.