Following a High Court hearing on 13 July, the judge Mr Justice Green today concluded that both the NHS and local authorities had the power to commission pre-exposure prophylaxis (PrEP). NHS England had argued that commissioning should fall to local authorities under their public health duty.
In his judgment, Green wrote: “NHS England has erred in deciding that it has no power or duty to commission the preventative drugs in issue. In my judgment it has a broad preventative role (including in relation to HIV) and commensurate powers and duties.”
Dr Jonathan Fielden, NHS England’s director of specialised commissioning and deputy national medical director, said: “Queen’s Counsel has advised NHS England that it should seek to appeal against the conclusions reached by the judge as to the scope of NHS England’s legal powers under the National Health Service Act 2006. In parallel with that we will set the ball rolling on consulting on PrEP so as to enable it to be assessed as part of the prioritisation round.
“Of course, this does not imply that PrEP – at what could be a cost of £10-20m a year – would actually succeed as a candidate for funding when ranked against other interventions. But in those circumstances, Gilead – the pharmaceutical company marketing the PrEP drug Truvada – will be asked to submit better prices, which would clearly affect the likelihood that their drug could be commissioned.”
The Local Government Association, which joined the action on behalf of member authorities as an interested party, welcomed the ruling.
Izzi Seccombe, who leads for the LGA on community wellbeing matters, said: "We firmly rejected the argument by the NHS that it should fall to councils.
"We argued that NHS England was wrong in law and that its power includes commissioning for preventative purposes, such as HIV-related drugs.
"During the transition period to the implementation of the NHS and Care Act 2010, NHS England sought to retain commissioning of HIV therapeutics, which the PrEP treatment clearly falls into.
"We therefore believe that it is, and should remain, an NHS responsibility.”
She added that the ruling demonstrated both local authorities and the NHS have a joint responsibility for delivering an integrated sexual health service “as Parliament originally intended”.
The National AIDS Trusts, which brought the case against NHS England, hailed the ruling as “game changing”.
Chief executive Deborah Gold said: “This is fantastic news. It is vindication for the many people who were let down when NHS England absolved itself of responsibility for PrEP. The judgment has confirmed our view - that it is perfectly lawful for NHS England to commission PrEP. Now NHS England must do just that.
“Over 4,000 people are getting HIV every year in the UK - we desperately need further prevention options to add to condom use. PrEP works. It saves money and it will make an enormous difference to the lives of men and women across the country who are at risk of acquiring HIV. The delay to commissioning PrEP is both unethical and expensive.”
