A Clinical Commissioning Group has been told by a High Court judge that its policy on assistive reproduction technique - is “unlawful”.
In a case heard at the High Court this week, lawyers for Elizabeth Rose, aged 25, challenged Thanet CCG’s refusal to pay for oocyte cryopreservation - the process of freezing her eggs.
Ms Rose fears she will be left infertile by bone marrow transplant and chemotherapy procedures she will soon undergo.
She wished to have her eggs cryopreserved before she received the treatment.
The judge, Justice Jay, dismissed Ms Rose’s application for a judicial review because she applied for NHS-funded treatment before the latest guidance from the National Institute for Health and Care Excellence was issued. The latest guidance gives stronger support to the efficacy of oocyte cryopreservation based on a larger body of evidence.
However, Justice Jay wrote in his judgement that the CCG’s policy is “unlawful” because it does not follow the latest NICE guidance issued last year.
“NICE’s view is that the evidence base supports the effectiveness of oocyte cryopreservation, and the CCG’s sole basis for not following the NICE recommendation is that it disagrees…In my judgment the defendant could have found other reasons for not following the NICE recommendation, but not this one. It follows that the new Assistive Reproduction Technique policy is unlawful,” he stated.
Clinicians at King’s College Hospital Foundation Trust applied for funding for Ms Rose’s treatment but Thanet CCG denied the treatment on the grounds that there was not enough evidence to demonstrate its effectiveness.
Commenting on the judgment Merry Varney from law firm Leigh Day, which is representing Ms Rose, said: “The wider implications of the court’s declaration is that, pending any successful appeal, any CCG, including Thanet CCG, who refuses women like Lizzy funding for egg freezing without an exceptionally good reason and without paying appropriate regard to their statutory duties, is acting unlawfully and will be open to a legal challenge.”
Following the ruling, private provider, the Assisted Reproduction and Gynaecology Centre, has offered to pay for Ms Rose’s treatment and Thanet CCG has agreed to cover her travel and accommodation expenses.
Ms Rose said: “I am extremely grateful to Thanet CCG for taking this decision. I now need to continue my treatment and the offer by ARGC clinic gives me the best opportunity to do that.
“I am aware that I am lucky in this respect and I hope that Thanet CCG do revisit their policy to ensure that no other single women in my position has to go through this process to ensure that they can have children in the future.
A spokesman from Thanet CCG said: “We will consider the full written judgement carefully and will work closely with NHS England in doing so. If necessary we will review our policy on the freezing of eggs.”