Eligibility consideration
17. Before we decide if we should carry out a detailed investigation of a complaint, we look at whether there are signs the organisations have got something wrong. We do this by comparing what should have happened with what did happen. As this complaint is about eligibility criteria, we look at this to consider what should have happened. We have done this and found no signs anything went wrong.
18. We considered what information was readily available on the NHS website about availability of IVF treatment. The NHS website for IVF availability says: ‘NHS Trusts across England and Wales are working to provide the same levels of service. But the provision of IVF treatment varies across the country, and often depends on local ICB policies. ICBs may have additional criteria you need to meet before you can have IVF on the NHS, such as not having any children already.’
19. The ICB provided evidence of its Clinical Commissioning Policy (September 2014, reissued August 2016 and reviewed July 2019) which outlines the eligibility for IVF and ICSI treatment. Criterion 14 states: ‘Childlessness: Treatments for sub fertility will be funded if the couple does not have a living child from their relationship or from any previous relationship. This includes a child adopted by the couple or in a previous relationship. Once accepted for treatment, should a child be adopted or a pregnancy leading to a live birth occur the couple will no longer be eligible for treatment.’
20. We also considered the process Mr and Mrs T had to go through to seek approval for NHS funding.
21. We know from considering the evidence, the ICB says Mr and Mrs T’s referring doctor was responsible for explaining the criteria to them when completing the referral form.
22. In October 2020, a referral form was completed in two parts. One part completed by the referring doctor does not include the full criteria, as outlined in the ICB’s policy. The doctor referred to the letter from late May 2018 from the IFR about Mrs T being eligible for NHS-funded ICSI treatment if she met the requirement to have used all embryos from previous cycles. Mrs T did meet this individual criterion.
23. We note that in late May 2018, when the IFR advised about this, Mrs T did not yet have a living child. In October 2020, when Mrs T’s doctor completed the referral form, she did have a child.
24. There is no mention on this first part of the referral form of Mr and Mrs T having a living child from the private treatment. However, their son was born in February 2019.
25. The second part of the form was a checklist for eligibility. This included a table outlining the criteria, a column to complete with ‘yes/no’ responses, and a column which states if ‘yes/no’ equals exclusion i.e. not meeting the criteria.
26. We can see this list of criterion includes:
• ‘Childlessness: does either partner have a living child (including adopted) from their relationship, or from any previous relationship?’
and says under eligibility: ‘Yes = excluded’
27. This criterion was incorrectly marked ‘no’. We know this was incorrect as Mr and Mrs T’s son was born in February 2019.
28. The professional declaration states: ‘I confirm that all the above access criteria have been met and this person/couple is therefore eligible for NHS-funded IVF treatment.’ The referring doctor signed this on 22 October 2020 and put in brackets ‘this is a repeat form’.
29. The couple’s declaration states: ‘I confirm that I have read and understood the questions above and that the information I have given is correct. I understand that if I knowingly give false information I may be liable to prosecution.’ Mr and Mrs T signed this on 24 November 2020.
30. Both the statements were incorrectly signed, as we know the information about Mr and Mrs T being childless was incorrect.
31. The IFR used this information to consider eligibility for IVF and ICSI funding. As the information provided by the referring doctor and Mr and Mrs T was incorrect, we cannot find a failing in the IFR’s consideration of Mr and Mrs T’s eligibility for funding, as this was initially based on incorrect information.
32. We also cannot find failing in its error after this date in confirming the funding was approved. Both the referring doctor and Mr and Mrs T had responsibility to make sure the information provided about their circumstances in the funding application was correct. When the ICB discovered the information its decision was based on was inaccurate, it acted in line with its policy and confirmed Mr and Mrs T were not eligible for funding.
33. We appreciate Mr and Mrs T will be disappointed by this decision due to the importance of the treatment to them and their wider family.
Communication of eligibility criteria
34. Mrs T also complains about the treatment provider not giving information about how a successful private cycle, i.e. having a living child, would impact their future eligibility for NHS funding.
35. She says the impact of this is they believed they would remain eligible for NHS funding for IVF/ICSI treatment after the private treatment. When they realised later their eligibility had changed due to having a child, this limited their ability to try to conceive another child for financial reasons.
36. She says had they known their NHS funding could be affected, they may have waited one year to be eligible for NHS-funded treatment, and would have the option to privately fund later treatment to have a second child.
37. We considered Mrs T’s evidence about this, including information showing the money used to pay for the treatment came from funds from remortgaging their property at a similar time.
38. We cannot find enough evidence Mr and Mrs T would have made a different decision about funding the treatment had they been made aware of the potential impact on their eligibility for NHS funding. We cannot know if they would have chosen to wait or decided to privately fund the treatment.
39. We know having access to IVF treatment to try to have a child was of immense importance to Mr and Mrs T. Mrs T told us on 16 November 2022 she did not want to wait a further 12 months to start treatment, as having a family was important to her and she had already started the treatment with the treatment provider.
40. We also considered the readily available IVF policy information on the NHS website and from the ICB about IVF eligibility. This information is publicly available and would have been discussed with Mr and Mrs T when they first applied for NHS IVF funding, following the same or similar referral process with their referring doctor when hoping to have NHS-funded IVF for a second child. It is more than likely Mr and Mrs T had access to the relevant information to be aware of the policy for IVF funding, which makes it clear in the commissioning policy that: ‘Once accepted for treatment, should a child be adopted or a pregnancy leading to a live birth occur the couple will no longer be eligible for treatment.’
41. We know from seeing the evidence of the application for funding that this is part of the criteria to be discussed with applicants by the referring doctor. As this complaint is about the ICB and treatment provider, not the referring doctor, we cannot consider whether there are signs of a failing here.
42. In November 2021, the ICB apologised for not advising in correspondence from 2018 that, if they had a child from privately-funded treatment, they would no longer meet the criteria for NHS funding, but said it was not part of Mrs T’s complaint in 2018. Mrs T says she complained about this in a letter sent in late April 2018.
43. Mrs T’s letter complains about the impact of the miscarriage on eligibility, rather than the impact of any subsequent pregnancies on funding. But she does mention being hopeful of a successful outcome from the current private treatment cycle and her hope to not need further cycles.
44. While we appreciate Mrs T’s view that there were opportunities to remind her of the eligibility criteria about childlessness, the evidence shows it is the referring doctor’s responsibility to discuss and check eligibility for funding. It is more than likely it is also criteria which Mr and Mrs T would have been made aware of when they initially sought treatment for infertility.
45. Mr and Mrs T understandably feel frustrated about the lack of clarity given about this criterion at the time.
46. We cannot say if this would have impacted their decision to privately fund the treatment or wait a further 12 months for NHS funding. So, we are unable to consider this complaint further.
47. We appreciate this is not the decision Mr and Mrs T are hoping for, and we understand being able to have further treatment in the hope of expanding their family is very important to them.