DISCRIMINATION ON GROUNDS OF AGE
195. The National Service Framework for Older People
requires that "NHS services will be provided, regardless
of age, on the basis of clinical need alone."
Although this requirement governs the provision of all NHS
services, NICE's function is to make what are usually difficult
decisions about the availability of treatment in a context of
competing needs and finite resources. Quality Adjusted
Life Years (QALYs) were developed by health economists to measure
preference for treatment and for the last eight years have informed
NICE decisions. They include two basic components: quality
and quantity of life. Several witnesses
were concerned that the use of this measurement was inherently
disadvantageous and discriminatory for older people. For
example, Philip Hurst of Age Concern told us that QALYs:
] appear to us to be age discriminatory
in the sense that by definition older people will have fewer years
to live and therefore the cost of each life year is inevitably
higher. In the way that NICE works, that would work against
Chairman: Can that be justified
in any circumstances?
Mr Hurst: If you do use QALYs at
all, you have to use a range of other measures to balance out
against those but QALYs seemed to rule in terms of the NICE decision-making."
196. NICE, however, in their evidence state that
] in practice, we have found that estimates of the
cost per QALY can be advantageous to older people [
people would only be potentially disadvantaged by QALYs in the
event of a hugely expensive, curative procedure whose benefits
During oral evidence, the chief executive of NICE told us
quite categorically "I have no experience of QALYs acting
in a way that disadvantages older people."
197. The controversy about the effect of the use
of QALYs has now reached the court room. During 2006 NICE
made a decision that drugs for use by people with Alzheimer's
disease were not cost-effective for those in the 'mild' stages
of the disease, changing its previously published guidance.
This decision has been judicially reviewed on the application
of the drug company Eisai, the licence holder of donezepil, the
drug affected by this decision. Their application is backed
by Pfizer, who manufacture the drug, and the Alzheimer's Society.
The case falls within both Houses' sub judice resolutions
and therefore the merits of it cannot be explored by this Committee.
198. Regardless of the court case, we would be reluctant
in any event to comment on whether the use of QALYs does or does
not adversely discriminate against older people and whether in
the latter case such discrimination can be objectively justified.
This is because it is a complex issue and we did not take
sufficient evidence on the subject. In any event, each
case needs to be looked at on its own merits. The point
that we think needs to be made, however, is that NICE, as a public
authority under the Human Rights Act, needs to refer explicitly
to relevant Articles of the ECHR such as Article 2 (right to life)
and Article 14 (freedom from discrimination) in the context of
its decision-making and its legal duties. We recommend that
the National Institute for Health and Clinical Excellence demonstrates
in all relevant publications that, in its decisions on clinical
practice, it has expressly taken into account the Convention rights
of any patients who may be affected, as required by the Human
199. We consider, in the next Chapter, the extent
to which staff have a role to play in ensuring the promotion and
protection of the human rights of older people in their care.