Nicola Sturgeon has promised a review into the rules governing patients in Scotland who pay for top-up drugs not available on the NHS.

The Health Secretary says that she wants to clarify the issue after the case of Michael Gray, who died in April from bowel cancer. His family had to pay for him to receive the drug cetuximab, licensed in Scotland and available on the NHS in Wales but not approved by NHS Grampian.

Once Mr Gray's family decided to pay for the drug, they found that they had to pay for all other NHS drugs treatment given to the 53-year-old from Buckie.

The rules, which apply across Britain, state that if a patient decides to pay for a non-NHS drug, then he or she must pay for the whole treatment. However, the rules are not inflexible and some health boards have offered new drugs, once they are licensed, depending on their ability to afford them.

Mr Gray's family took their case to Holyrood's Public Petitions Committee with the aim of amending the rules. A report by the committee on the availability of cancer drug treatments was debated by MSPs yesterday. It called for more clarity in the way that health boards decide whether cancer patients can receive non-NHS drugs.

Ms Sturgeon said that while it was not possible to legislate for every individual case, she recognised the need to put in place a framework to guide clinicians, hospital managers and patients on whether a patient should receive non-NHS treatment.

“The principle of NHS care available according to need, not the ability to pay is one that I - and all of Scotland - hold dear,” she added.

“The question here is that if someone exercises their right to access some of their care in the private sector, to what extent should they be able to get the rest of their care on the NHS?

“There are some situations where the care that a patient is getting is so interwoven that you could not separate out the element to be provided privately from the elements to be provided on the NHS, without compromising patient safety and good clinical governance, There are other cases where that might not be the case and concurrent private and NHS treatment might be possible.”

Cancer charities have given warning that there are ethical concerns about creating a situation where two patients on the same ward could receive different treatment on the basis of their ability to pay.

Labour said that patients had a right to demand that the most effective cancer treatment was provided by the NHS. “Reports of patients being denied potentially life-saving drugs are unacceptable,” Cathy Jamieson, the Shadow Health Secretary, said.

“The Scottish government's decision to review guidance governing co-payments is timely but this debate raises difficult and complex issues.”

Ms Jamieson said that ministers should urgently establish new criteria for exceptional needs prescribing of new drugs to ensure uniformity across Scotland. “Patients deserve clear information and rapid decisions. This means that the testing regime must also be reviewed to ensure that new drugs are available to all patients who need them much more quickly.”

An inquiry in England into drugs top-up fees due to be published this month is widely expected to propose that patients should be allowed to pay for additional drugs without losing their NHS care.

Ministers will then consider changing the rules in England but many patients say that they do not have the time to wait.

Sue Bentley is to take landmark legal action against the NHS for withdrawing treatment because she had chosen to pay for a drug that the NHS does not fund.

Ms Bentley had her NHS care withdrawn after paying privately for the drug Avastin at a cost of more than £3,000 a month to increase her chance of fighting lung cancer.

As a result she is being charged to receive two other drugs, cisplatin and gemcitabine, which are normally available free on the NHS. Ms Bentley is challenging the decision by the Velindre NHS Trust in Cardiff.

Critics claim that if ministers at Westminster decide to allow patients to pay for top-up drugs, it would mean the end of the NHS. They say it would create a two-tier service with wealthier patients living longer because they have been able to buy expensive drugs not approved by the NHS.

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