How does the operation of PHARMAC's 'Community Exceptional ...

physician level must be considered after Medsafe had declared the drug safe to
use. He believed that the Medsafe issue did not alter the lawfulness or legal
rationality of the doctors’ decisions to prescribe.
Judge Comments on PHARMAC’s Consultation Processes
Justice Gendall also had concluding remarks to make about the
appropriateness of the consultation processes used by PHARMAC. His
remarks are divided into two sections; consultation with DHBs and consultation
with the public.
Justice Gendall did not accept Helen Cull’s view that PHARMAC allowed the
DHBs to dictate its decision. He did however feel that PHARMAC should not
have asked the DHBs to support its decision. He believed the DHBs should
have been asked a more open question about affordability.
The Judge did suggest that PHARMAC desist from its policy of seeking the
support of DHBs before deciding to list or not to list a drug for funding.
Primarily, this was because the DHBs ultimately fund any listed drug, not
PHARMAC. Consequently, the DHBs may be seen to have a vested interest in
agreeing with the preliminary decision not to fund. He also felt that PHARMAC
was unwise to ask for support for their proposal because in doing so they gave
the impression that the PHARMAC Board was not able to act independently.
Justice Gendall said that he found PHARMAC’s community consultation
processes wanting and this caused the reviewable error and the setting aside of
the decision of the PHARMAC Board not to fund Herceptin for twelve months.
In directing PHARMAC to reconsider the above decision, he directed that
PHARMAC must consult widely with the public, clinicians, and others who had a
legitimate interest and/or were likely to be affected by the Roche Company’s
application for funding for Herceptin for twelve month treatment regimes.
He was clear not to deliver his view on whether or not Herceptin should or
should not be funded for twelve months (or indeed any other period) because
such a direction would be outside the scope of a judicial review. Conversely,
his direction as to the consultation process was made clear to PHARMAC in the
judgment.
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