NHS loses appeal of the decision that it has the power to commission medication for HIV/AIDS (the PrEP case)

Friday 11 November 2016

The issue on this appeal was whether NHS England, a commissioning body created by the Health and Social Care Act 2012 ("the 2012 Act") has the power to commission medication for HIV/AIDS PrEP; this stands for pre-exposure prophylaxis.

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The issue on this appeal was whether NHS England, a commissioning body created by the Health and Social Care Act 2012 ("the 2012 Act") has the power to commission medication for HIV/AIDS 'PrEP' (pre-exposure prophylaxis). Human Immunodeficiency Virus ("HIV") is a disease which attacks the immune system. It reduces the body's white blood cells so that it is less able and, in due course, unable to combat infection.

It can be treated with Anti-Retroviral ("ARV") medication which suppresses the virus and is used successfully to treat people living with HIV. Such medication is expensive - £360,000 for treating a single person over his or her lifetime. An estimated 103,700 individuals in the United Kingdom are currently living with HIV.

This expenditure might well reduce if a sufficient number of appropriate people are given PrEP medication; this is itself fairly expensive. PrEP requires the identification of individuals who are HIV negative but are at comparatively high risk of contracting HIV and further requires that these individuals then take ARV medication. The way in which the medication works is, in broad terms, to inhibit dissemination of the virus from cell to cell and it thus limits the number of cells that became infected.

A claim in the High Court identified that NHS England had the power to fund and commission PrEP and it was not something which the NHS could leave to local authorities as a public health measure. On appeal NHS England submits that PrEP medication, being essentially preventative, belongs in the realm of public health which under the relevant legislation is the responsibility of local authorities and that it has no power to commission such medication.

The Court of Appeal dismissed NHS England’s appeal with Lord Justice Longmore noting at paragraph 46 of the judgment:

"What then of the argument that if treatment such as PrEP is not, in fact, provided by the Secretary of State or local authorities, then it does not fall within the section 1H(2) exception in any event. The contention has its attractions but is perhaps difficult to reconcile with what appears to be the intention of section 1H to carve, out of NHS England's responsibility, the public health functions of the Secretary of State and local authorities. I do not, therefore, think that the argument can be correct; sadly it seems to follow that bureaucratic squabbles about apportionment of responsibility will be the inevitable consequence of the Lansley reforms. The judge said (para 34) that one of the purposes of the changes was to remove the Secretary of State from front line decision making and, no doubt, that is true. Whether it was further intended that the resulting bureaucratic squabbles should be resolved by spending taxpayers' money on expensive solicitors and barristers is, perhaps, doubtful. It would be far more sensible to have an internal mechanism for sorting out such disputes.”

To read the full judgment click here.

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