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Herceptin Court judgement reassuring

Media release

Herceptin Court judgement reassuring

Today's High Court judgement on Herceptin gives New Zealanders significant reassurances about PHARMAC's processes and decision making, says PHARMAC’s acting chief executive Matthew Brougham.

“PHARMAC has considerable sympathy for women with breast cancer, as it does for all New Zealanders with serious illness,” says Matthew Brougham. “Taking legal proceedings while living with breast cancer is an understandably difficult situation.”

“The Court found that PHARMAC’s decision to fund the 9 week treatment was robust. There was a wide consultation process, receiving views from a range of interested parties.”

Justice Gendall referred to the consultation as “comprehensive”.

The judge found that none of the grounds challenging PHARMAC’s 9-week funding decision were valid.

Justice Gendall said of the nine-week decision:

“The public was told, in clear terms, what PHARMAC’s proposal was. All who wanted to express a view were heard. No procedural unfairness occurred. The decision to fund the nine weeks regime was not unreasonable or irrational in any legal sense. There was ample evidence to support it being reasonable, though many may have disagreed.”

Of 28 grounds of appeal considered by the Court, 27 were not upheld. The Court found:

 All allegations that the decisions were biased, unreasonable, pre-determined or irrational were without basis.

 The individual applications for cancer Exceptional Circumstances funding were properly and robustly considered, and the applicants were “afforded every opportunity” to put forward their cases.

 Both the costs and benefits of medicines are relevant considerations for PHARMAC’s clinical advisory committee, PTAC.

The Court did, however, find that PHARMAC ought to have consulted on its July 2006 decision not to fund Herceptin at that time, and set it aside. The Court has ordered that PHARMAC should now consult on its decision of July 2006.

PHARMAC is required to consult if it’s considered appropriate to do so; a judgment that PHARMAC made very carefully. Justice Gendall referred to the consideration about whether to consult as "finely balanced". He found that the high profile nature of the issues in particular meant that PHARMAC should have consulted.

“PHARMAC needs to carefully consider the judgement before taking any steps. This includes considering the wider implications for PHARMAC's decision making,” says Matthew Brougham.

“PHARMAC remains open to funding a longer treatment regimen of Herceptin if evidence suggests that it, relative to other medicines that could be funded, would achieve the best health outcomes for New Zealanders.”


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