Peter Cuthbertson is the Conservative Parliamentary Candidate for Darlington. He is a consultant to a number of medical firms, but none of them were parties in the court case below. He writes in a personal capacity.
Every year, Britain suffers more American-style judicial overreach, with more political decisions taken by judges no one elected. So let’s give credit where it is due to Richard Arnold, the High Court Judge who last week firmly decided against taking another step in this direction.
Presented with the opportunity to correct a generally agreed wrong from the bench, he instead acknowledged the proper scope of his role and declared: “Clearly, it is a matter for NHS England and NHS Wales”. The right response could help a lot of NHS patients access the most appropriate treatments.
Last week’s High Court case was brought by a drugs company who feared their patent was being breached.
UK law rightly incentivises researchers to find new uses for existing medicines by granting more than one patent for the same drug if new medical uses are discovered. Like other forms of medical research, looking for new uses for existing drugs is time-consuming and expensive – and often goes nowhere. But where it succeeds, a lot of patients can benefit.
So if you went to the trouble of discovering a way to cure the common cold with an existing drug, you could patent this discovery. For the duration of the patent, no one else would be able to offer that drug as a cure for the cold, and you alone would get the financial benefit.
After the patent expired, anyone could enter the market and sell the drug as a treatment for the cold, with the competition driving down drug prices.
This is intellectual property law working in the interests of NHS patients in both respects. The financial incentive for medical research helps to ensure new remedies are discovered in the first place, and then later on the cheaper drugs are more affordable for the NHS.
But actual prescriptions are poorly adapted to the modern realities of patent laws and patient needs. The vast majority of prescriptions do not explain the condition for which the drug was prescribed.
The pharmacist will see only the generic drug name, and is predictably inclined to give patients the most cost-efficient option. Often the cheapest option is prescribed automatically.
It is easy to see why rival drugs companies turned to the courts to settle this dispute. But as both sides have such strong points, a court ruling in either direction would fail to resolve the matter satisfactorily.
It is important to incentivise medical research and to protect intellectual property – and it is also important that drugs companies go on providing generic drugs cheaply for NHS patients.
One simple policy solution is to require prescriptions to list the illnesses as well as the drug names. That way pharmacists could dispense the least expensive tablets to the patient whose prescription said “paracetamol for a headache” and dispense the patented tablets for the patient whose prescription said “paracetamol for the common cold”.
But this could give pharmacists an unprecedented level of information about people’s medical problems. By contrast, patient confidentiality could be preserved if prescription software required that, where drugs are patented, they are listed in prescriptions by their patented name.
The pharmacist would then dispense the patented drug rather than default to the cheaper generic drug.
This would be fair to all life science and pharmaceutical firms: encouragingly, both sides in last week’s case saw this as the best solution. Patients would plainly be better off. Even our courts would benefit from having to adjudicate less frequently in disputes between drugs companies.
Core conservative principles would be upheld – rewarding entrepreneurs who take a risk and succeed, and helping the general public through competition.
So now it is down to NHS England and NHS Wales to act – and if they fail to act, for Ministers to step in.