comment: NICE chair's remarks may open the floodgates to judicial review

Published: 07/10/2004, Volume II4, No. 5926 Page 19

Trusts will be alarmed - and intrigued - by the scenario outlined by National Institute for Clinical Excellence chair Sir Michael Rawlins at the Labour Party conference last week when he urged patients to take trusts to judicial review if they failed to implement NICE guidance (news, pages 6-7).

The surprise is that it has not happened already. Surely it will not be long before powerful patient lobbies, buoyed by constant talk of choice, home in on an offending trust. Sir Michael believes that patients' chances of success are high - and lawyers tend to agree.

Some might think Sir Michael is deflecting criticism of his own organisation's processes and support mechanism. Certainly, last year's NICE conference was peppered with contributions from resentful doctors who believed the institute was better at throwing pieces of guidance at them than helping with implementation.

We must welcome Sir Michael's frank admission of NICE's weaknesses - chiefly the 'embarrassingly long' gestation period for guidance. In part he blames capacity - there will be worries that taking on much of the workload of the Health Development Agency next year will do nothing to improve its ability to act quickly.

There are other criticisms to be made. As our clinical management feature explains this week (pages 30-31), its guidance on the provision of osteoporosis services will prove deeply unpopular with specialists.

Many fear that restrictions on scans for women under 75 is a disservice to patients and will create greater need in the long term. They also point out that the recommendations contradict the guidance put out by NICE's sister organisation in Scotland. It may be that trusts' doors will not be the only ones patient groups start knocking on.