I’m a bit troubled by the judgment of the Court of Appeal in Servier Laboratories v NICE, in which the Court has granted Servier’s appeal, quashing the National Institute for Clinical Excellence’s decision not to recommend Servier’s drug Protelos (strontium ranelate) for use within the NHS for the prevention of fractures in patients with osteoporosis.

Protelos has been licensed for use throughout the EU by the European Medicines Agency, which considered the drug in 2001 (some drugs are considered by the EMA at EU level, bypassing national authorisation by our own MHRA). As part of its assessment, the EMA asked for some evidence that Protelos prevents hip fractures in particular, and suggested Servier identify among the patients who’d taken part in its clinical trial a subgroup of women who would be at an enhanced risk of suffering a hip fracture. Servier did so, and analysis of those figures seem to show, within the subgroup, that women on the drug had sustained 36% fewer hip fractures than women on placebo. That degree of efficacy compared closely with that of of aledronate – NICE’s recommended drug. On that basis, the EMA was content to authorise the use of Protelos in Europe.

Why the EMA asked for that analysis, I don’t know. It’s important to note though that the subgroup analysis is not itself randomised clinical trial data. It’s a selection of data made after the fact, and so inherently vulnerable to the biases that randomisation in clinical trials is designed to prevent.

When NICE looked at the drug, though, it was less happy with this evidence. Its guidance to drug companies says

There should be a clear clinical justification and, where appropriate, biological plausibility for the definition of the patient subgroup and the expectation of a differential impact. Ad hoc data mining in search of significant subgroup effects should be avoided.

When NICE asked experts at Sheffield University to evaluate Protelos, they weren’t impressed with the subgroup analysis, which they thought essentially unreliable, because comparisons were not being made between randomly selected groups. Servier disagreed, and make submissions reminding NICE that the EMA had been satisfied with the robustness of the data, and arguing that the subgroups were effectively “randomised”, since they had been well balanced for baseline characteristics. I don’t myself see how judicious post-hoc selection can ever be equated to genuine advance randomisation, but perhaps that’s a result of my scientific ignorance rather than the Court of Appeal’s. In any case, NICE’s Appraisal Committee decided against Servier, whereupon Servier appealed; and on appeal, NICE’s Appeal Panel decided it had been right to reject the evidence of the subgroup analysis.

Whereupon, Servier went to the courts, arguing on judicial review that NICE’s decision was not properly reasoned, and irrational. Again at first instance they lost on this point. But now the Court of Appeal has finally found in Servier’s favour.

The Court’s reasoning is that NICE in the reasoning it gave for its decision never expressly adopted the Sheffield experts’ view that the subgroup analysis was not randomised. Nor did it expressly give reasons for rejecting Servier’s arguments about randomisation. So far, I follow. Perhaps – just perhaps – it’s right to quash a decision like this on the sole basis that it could and should have been more fully reasoned. I’m not sure in this particular case that it would be right, given that it must have been obvious to Servier at every point in the procedure why its data was not accepted. Indeed, the submissions it actually made indicate clearly that it was well aware NICE shared the Sheffield view that the subgroup analysis was unreliable because not truly randomised. I am genuinely surprised that Lady Justice Smith says she doesn’t know why NICE reached the decision it did.

But the judges go further than this – and that’s what causes me concern. Lady Justice Smith says (para. 40) she has grave doubts about the rationality of NICE’s decision – not merely about the adequacy of the reasons NICE gave for it. She follows Servier in placing great emphasis on the fact that the data was good enough for the European Medicines Agency, and goes on (para. 52)

By making these references to EMA I am not, of course, suggesting that NICE is bound by a prior decision of that body. However, I would expect to see some reason given for NICE reaching a different view from a body of similar standing.

Lord Justice Wilson agrees (para. 62):

It is not suggested that NICE are bound by EMA’s decision or its reasoning but the appellants are entitled to expect any decision against them to be properly reasoned, especially when it is contrary to the reasoned decision of an equally eminent body.

But this surely goes too far, and does indeed bind NICE to follow the EMA at least in the sense that it must do so unless it provides good reasons why not. Servier certainly present it that way in their press release.

Both judges seem mesmerised by the fact that the EMA asked for this data. But firstly, it’s not clear that should matter since the EMA’s decision was of a different kind – whether Protelos could be used at all in the EU. Accepting data as supporting mere authorisation (when the alternative would be to deny Protelos access to the EU medicines market at all for prevention of hip fractures) is not the same, it seems to me, as accepting the same data to support Servier’s case that Protelos should be funded by the NHS rather than some other drug – especially when even the Court of Appeal recognised that the contentious data does not show Protelos is more effective than NICE’s preferred treatment. It’s far from clear that it would have made any real difference to its recommendations even if NICE had accepted the subgroup analysis – but the judges don’t seem to have thought much about that. They simply accepted Servier’s contention that the point is not academic and the outcome might somehow be favourable to its drug.

Secondly, though, neither judge seems to consider the possibility that the EMA might have got it wrong by asking for subgroup data precisely “in search of significant subgroup effects”, as NICE’s guidance cautions against. Why should NICE have to justify its departure from the EMA’s approach, unless the EMA is equally required now to justify its approach in the light of NICE’s? Repeatedly the judges suggest it would be “surprising” if the EMA had accepted flawed results. But that’s merely an assumption based on a perception of the EMA’s authority. Nowhere do the judges quote the EMA as giving adequate reasoning – of anything approaching the exhaustiveness the judges are requiring from NICE – to justify its decision to accept the data.

For NICE to have to go through this decision again, being in effect barred, against its better scientific judgment, from rejecting the subgroup analysis on principle because selected post hoc, is bad enough. It looks very much as though the judges have been persuaded by Servier’s arguments about the data, and have preferred their own scientific judgment about its relevance to that of the actual experts.

Yet worse is the suggestion that NICE’s decisions may in future be legally reviewable in terms of their agreement or otherwise with the uncritically accepted approach of some other body, set up for another purpose.

2010-03-31T19:05:43+00:00Tags: , , |