Funding of anti-HIV drug ruled within NHS powers

The NHS in England power to fund a drug that can prevent HIV, a High Court judge ruled today, rejecting arguments that as a preventative health measure it was the responsibility of local authorities.

NHS England had said it was up to councils to provide the pre-exposure prophylaxis (Prep) drug as they are in charge of preventative health.

But that stance was challenged by the National Aids Trust.

The judge said there was nothing to stop the NHS paying for the drug.

NHS England has yet to respond.

Using Prep has been shown to reduce the risk of HIV infection by more than 90%.

The once-a-day pill, which costs £400 a month per person, works by disabling the virus to stop it multiplying.

The idea is to give it to uninfected men who are having unprotected sex with other men.
'Significant breakthrough'

It is currently used in the US, Canada, Australia and France to help protect the most at-risk gay men.

NHS England had argued that because Prep was preventative it was not its responsibility.

In May, it said it had legal advice that said it did not have the "legal power to commission Prep" and that under 2013 regulations "local authorities are the responsible commissioner for HIV prevention services".

NHS England has also warned that if it prioritised Prep, there was a risk of a legal challenge from people wanting similar access to other preventative treatments.

But the National Aids Trust said local authorities did not have sole responsibility for HIV prevention in England.

The NHS in Wales, Scotland and Northern Ireland have not yet made a decision on Prep.

In his judgment Mr Justice Green said: "In my judgment the answer to this conundrum is that 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. But I have also considered the position if I am wrong in this. On this alternative hypothesis I am of the view that NHS England has still erred in concluding that it has no power to commission the PrEP drugs in question. Either: (i) it has mischaracterised the PrEP treatment as preventative when
in law it is capable of amounting to treatment for a person with infection or (ii), NHS England has in any event the power under the legislation to commission preventative treatments (and therefore falls within its powers however that power is defined); because it facilitates and/or is conducive and/or incidental to the discharge of its broader statutory functions.