Advocate General Opinion on Software Medical Devices

On 28 June 2017, Advocate General Sanchez-Bordona (AG) presented his opinion in case C-329/16 Syndicat national de l’industrie des technologies médicales and Philips France following a request for preliminary ruling from the Conseil d’État (France) to the Court of Justice of the European Union (CJEU) concerning the laws governing the classification of software medical devices.

The AG’s opinion is not binding on the CJEU, but it provides useful guidance on the application of the EU medical devices Directive 93/42/EEC (the MDD) to software programs.  Importantly, it confirms the position set out in the Commission’s MEDDEV 2.1/6 guidance that software which merely stores and archives data is not a medical device; the software must perform an action on data (i.e., it must interpret and/or change the data).

EU national courts use the preliminary ruling procedure if they are in doubt about the interpretation or validity of an EU law. In such cases, they may ask the CJEU for advice. The Advocate Generals provide the CJEU with public and impartial opinions to assist the Court in its decision making. The Advocate Generals’ opinions are advisory and non-binding, but they are nonetheless influential.  In the majority of cases the CJEU follows the Advocate General.

Background

Philips France (Philips) manufactures and places on the EU market a software program called Intellispace Critical Care and Anesthesia (ICCA), which is used by physicians to provide information necessary for the proper administration of medicines for the purposes of resuscitation and anaesthesia.  The software highlights possible contraindications, interactions with other medicines and excessive dosing.  Philips classified the ICCA as a medical device under the MDD and the product bears a CE mark confirming that the software complies with the applicable requirements of the MDD.

Under French law, software programs intended to support medical prescriptions are subject to national certification requirements.  The French Government’s position is that the ICCA must comply with this national certification requirement. Further, it does not consider the ICCA to be a medical device within the meaning of Article 1(2)(a) of the MDD because the function of assisting with prescriptions does not fall under any of the defined purposes within the definition of a medical device.

Philips claimed that the national certification requirement should not apply as it amounted to a restriction on import, contrary to EU law, and that the French Government was in breach of Article 4(1) of the MDD, which provides that Member States must not restrict the placing on the market or the putting into service of medical devices bearing the CE mark within their territory.

The French Conseil d’État referred to the CJEU a request for a preliminary ruling on the question of whether software equivalent to the ICCA satisfies the definition of a medical device under the MDD.

AG Opinion

The AG opinion suggests that Philips had correctly classified the ICCA as a medical device.  It highlights that since the ICCA bears a CE mark and is freely marketed in 17 EU Member States, it benefits from a presumption of conformity with the MDD.  It was a matter for the French Government to rebut this presumption, and it had failed to do so.

In reaching his conclusion, the AG highlighted a number of points, including:

  • In order to qualify as a medical device, software must have a function beyond collection and archiving of data (i.e., it must have more than a purely administrative function). Rather, it must modify or interpret the data.  The ICCA software includes an engine that allows healthcare professionals to calculate the prescription of medications and the duration of treatments.  In light of such functions, the AG considers it difficult to maintain that the ICCA does not have a diagnostic or therapeutic purpose within the scope of the definition of a medical device. The ICCA is not a software program that is limited to administrative functions, but rather software that helps determine the proper prescription for the patient.  It is therefore a medical device as it has the aim of “preventing, controlling, treating or alleviating a disease”.
  • The fact that the ICCA does not act by itself in or on the human body does not preclude it from classification as a medical device. Contributing to the principal action of correcting the human body through the taking of medicinal products is sufficient.

The above conclusion endorses the position set out in the Commission MEDDEV 2.1/6 guidance on qualification and classification of standalone software, which states:

“…if the software does not perform an action on data, or performs an action limited to storage, archival, communication, ‘simple search’ or lossless compression (i.e. using a compression procedure that allows the exact reconstruction of the original data) it is not a medical device.”

Implementing ICH guidelines-compliant validation

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Professionals in the field of statistical analysis need to possess clarity on understanding and interpreting statistical concepts used to investigate quantitative ICH Guidelines, such as:

  • Analytical methods validation
  • Procedures and acceptance criteria in calibration limits
  • Process and Quality Control
  • Process and quality controls
  • ICH Q8 and Q9.

The ICH tripartite-harmonized ICH Guideline on Text, which was previously coded as Q2A guideline, is the guideline the ICH has set out for analytical methods validation. It was finalized in October 1994 under Step 4. Identification of the various validation parameters that are required for a number of analytical methods is the aim of this guideline. It also lays down the characteristics and parameters that have to be taken into consideration when validating the analytical procedures that are included in the registration applications.

ICH tripartite-harmonized ICH Guideline on Methodology, which used to be previously coded as Q2B is the ICH guideline for procedures and acceptance criteria in calibration limits. Finalized in November 1996 under Step 4; this guideline extends the ICH guideline on Text, or what is called Q2A (mentioned above). It comprises the actual experimental data required, along with the statistical interpretation, for the validation of a variety of analytical procedures.

Current Step 4 for process and Quality Control

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The Current Step 4 version of the ICH-harmonized Tripartite Guideline is the current guideline for process and Quality Control. The regulatory bodies of the three biggest pharmaceutical markets in the world, namely the US, the EU and Japan have recommended the final draft of this guideline for adoption.

Professionals who want to achieve harmonization in Quality Meeting are required to meet critical milestones. These milestones include conducting stability studies, understanding the way the studies define relevant limits for the testing of impurities, and following a more flexible approach to pharmaceutical quality that is based on the principles of Good Manufacturing Practice (GMP) risk management. The ICH’s Quality guidelines on harmonization relating to Quality cover the following areas:

Complete learning on the areas of Validation in accordance with ICH guidelines

Which laboratory records should be retained and for how long

Considering the complexity and the breadth of the issues associated with these techniques, which cover both the pharmaceutical and clinical applications, and considering that these techniques apply to a number of area such as stability testing, outlier analysis and risk management; it is important and necessary for professionals in this area to get proper guidance on validation.

GlobalCompliancePanel, a leading provider of professional trainings for the areas of regulatory compliance, will offer this learning at a seminar that it is organizing. The Director of this seminar is Dr. Alfred Bartolucci, who serves as Emeritus Professor of Biostatistics at the University of Alabama. To register for this seminar, please visit Implementing ICH guidelines-compliant validation. This seminar has been pre-approved by RAPS as eligible for up to 12 credits towards a participant’s RAC recertification upon full completion.

A thorough understanding of statistical concepts

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The statistical concepts used for investigating quantitative ICH Guidelines, such as analytical methods validation, procedures and acceptance criteria in calibration limits, and process and Quality Control, as well as with ICH Q8 and Q9, will all be covered in depth at this seminar.

Although not a formal course in statistics, this seminar will offer an applied approach to the statistical techniques used and will show how to reasonably interpret them. This learning will help participants to address the various challenges facing pharmaceutical and biotechnology companies when they are required to quantify results in a meaningful interpretable manner through tabulations and graphical presentations.

The expectations of different regulatory agencies regarding the quantification and development of a sound statistical monitoring of a properly utilized, effective, and efficient process control will also be taken up for discussion at this seminar. Dr. Bartolucci will familiarize the participants with the critical aspects of the statistical methods. He will explain the practical application of these guidelines.

This seminar will offer the following learning objectives: