High Court rules NHS England can fund "game-changing" PrEP HIV drug

Tuesday 2 August 2016

National Aids Trust v National Health Service Commissioning Board (NHS England) and The Secretary of State for Health and The Local Government Association [2016] EWHC 2005 (Admin): Mr Justice Green, 2 August 2016. The National Aids Trust has won a high court battle over whether a preventative treatment for HIV that charities say is a “game-changer” can legally be funded by the NHS.

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National Aids Trust v National Health Service Commissioning Board (NHS England) and The Secretary of State for Health and The Local Government Association [2016] EWHC 2005 (Admin): Mr Justice Green, 2 August 2016.

The court held that the NHS has legal power to fund the prescription of a drug for pre-exposure prophylaxis (PrEP), which is highly effective in preventing HIV transmission. The National Aids Trust (a  charity) has won a high court battle over whether a preventative treatment for HIV that charities say is a “game-changer” can legally be funded by the NHS.

The Defendant, NHS England, said it had received advice that it did not have the legal power to fund PrEP, a “highly effective” anti-retroviral treatment used to stop HIV from becoming established in the event of transmission.

The position of the NHS was that as Local Authorities are responsible for public health they should fund the provision. However, Mr Justice Green ruled that NHS England “has erred in deciding that it has no power or duty to commission the preventative drugs in issue”.

Mr Justice Green held that the core of the legal challenge was about “the allocation of budgetary responsibility in the health field”. He said:

No one doubts that preventative medicine makes powerful sense. But one governmental body says it has no power to provide the service and local authorities say they have no money. The claimant is caught between the two and the potential victims of this disagreement are those who will contract HIV/Aids but who would not were the preventative policy to be fully implemented.

He said, "In my judgment the answer to this conundrum is that NHS England has erred in deciding that it has no power to commission the preventative drugs in issue." Alternatively, that NHS England has “mischaracterised the PrEP treatment as preventative when in law it is capable of amounting to treatment for a person with infection”.

In any event Mr Justice green held NHS England had power to commission preventative treatments because that facilitated, or was incidental to facilitate, “the discharge of its broader statutory functions”.

Thus the ruling identifies that the NHS has to power to commission the provision of this drug. NHS England has said they plan to appeal the decision.

Read the full judgment.

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