ENGLISH cancer patients should take advantage of a legal loophole and rent a second home in Scotland to gain access to drugs not available to them at home, a lawyer has suggested.
Anybody who "resides ordinarily" in Scotland is entitled to the drugs free, said Nigel Giffin, QC, and establishing residence could be as simple as renting a flat north of the Border while retaining a home in England.
The NHS in Scotland would be
obliged to treat such a person after even a short period of residence, at a possible cost of more than £10,000-a-year.
Mr Giffin said: "These drugs are successful in keeping people alive.
It is very important and well worth someone moving if it makes the difference between them getting the drug or not."
Mr Giffin was asked by the Western Provident Association (WPA), a private medical insurer, to give advice on the law.
WPA lists 20 drugs, mainly for cancer, which have been approved by the Scottish Medicines Consortium but have not been cleared by the National Institute for Health and Clinical Excellence (NICE) in England and Wales. Some have been rejected by NICE, while others await a ruling.
Mr Giffin told a meeting in London that case law indicated an individual could establish ordinary residence in Scotland "even if he only intended to remain for a limited period, provided that he had a settled purpose in doing so".
Such a purpose could even include going there solely to receive a course of treatment, he said, citing a ruling by the late Lord Scarman.
Mr Giffin added: "[The patient] would need to intend to be in Scotland for a reasonably prolonged period, say six months. The question is, are you there with a degree of continuity for it to be called 'settled resident'? If we see an increasing divergence in services, it might be worth acquiring ordinary residence in Scotland."
However, Fred Tyler, an Edinburgh lawyer specialising in medical negligence, said such a move could be liable to legal challenge. "My instinctive answer is that this is maybe stretching the legislation too far. The NHS in Scotland would be pretty slow if they enabled patients to get these drugs."
Among the drugs listed by WPA are Erbitux for colorectal cancer and head and neck cancer, and Sprycel for chronic myeloid leukaemia.
Margaret Watt, from the Scotland Patients Association, said:
"It's shocking that any patient has to change their address. They should not be denied these drugs in Scotland or England."
A spokeswoman for the Scottish Government said: "NHS boards are responsible for the resident population [in their area]. Should anyone have a house in that area, they will be served by the NHS board."
