Tested or not, the drugs should be available for people to use at their discretion. It's no one's business but MINE if I take a drug that might kill me. The difference between a govt entity and a private entity is that the govt entity can forbid access, and the private entity merely informs the consumer. That's a HUGE difference.
When the FDA refuses to approve, or even bans medication that can save lives, then yes.. they are operating like a death panel. Especially when they do it because the drug is expensive. (and it's expense is in large part due to the FDA themselves)
From John Stossel's blog:
Who gets to control what you put into your body? In what sense are you free if you can’t decide what medicines you will take?
Bruce Tower has prostate cancer. He wanted to take a drug that showed promise against his cancer, but the FDA would not allow it. One bureaucrat told him the government was protecting him from dangerous side effects. Tower’s outraged response was: “Side effects, who cares? Every treatment I’ve had I’ve suffered from side-effects. If I’m terminal it should be my option to endure any side-effects.”
Of course it should be his option. Why, in our “free” country, do Americans meekly stand aside and let the state limit our choices, even when we are dying ?