Councils and charity win High Court battle over HIV treatment decision

The National Aids Trust (NAT) and the Local Government Association have won a High Court challenge to a decision by NHS England to refuse to consider in its commissioning process an anti-retroviral drug (“PrEP”) to be used on a preventative basis for those at high risk of contracting AIDS.

In National Aids Trust v NHS England the defendant argued that it had no legal power to do so under the governing legislation, the National Health Service Act 2006 (“NHSA 2006”).

NHS England, which is reported to have announced its intention to appeal the ruling, argued before Mr Justice Green that under the relevant legislation it did not possess a power to perform ”public health functions” that are carried out by the Secretary of State or local authorities pursuant to their respective statutory powers and duties.

It also submitted that, pursuant to regulations promulgated by the Secretary of State for Health, there was now a division of labour between NHS England and local authorities with the latter assuming responsibility for preventative medicine in relation to sexually transmitted diseases.

NHS England therefore argued that since the proposed commissioning of PrEP was for preventative medicine in the field of sexually transmitted diseases this was now the sole task of the local authorities (or the Secretary of State) but not NHS England.

Local authorities – represented in the litigation by the LGA – disagreed. They argued in the High Court that not only did they consider that NHS England was wrong in law but that (a) the consequences (if NHS England was correct) were illogical and inefficient because NHS England would then have responsibility for dealing with the greatest portion of the HIV/AIDs policy which included treatments identical or extremely closely related to PrEP but would leave it to the local authorities to deal with the tail end and (b) the local authorities had no money and no budget for such preventative health in this field in any event.

The judge, Mr Justice Green, noted that at its core this judicial review was about the allocation of budgetary responsibility in the health field.

“No one doubts that preventative medicine makes powerful sense,” he said. “But one governmental body says it has no power to provide the service and the local authorities say that they have no money. The claimant (the National Aids Trust) 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.”

Mr Justice Green said, however, that the issue for the High Court was a narrow one – was NHS England correct in its analysis of its powers and duties? If it was then the wider policy and budgetary issues which arose were for the Secretary of State and Parliament to sort out.

“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,” the judge found.

“In my judgment it has a broad preventative role (including in relation to HIV) and commensurate powers and duties.”

The judge also considered the position if he were 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.”

Responding to the ruling, the Local Government Association tweeted: “We are pleased that today’s High Court ruling confirms our position that @NHSEngland has the power to commission the HIV treatment #PrEP.

“Councils look forward to continuing to work with @NHSEngland to determine how #PrEP could be introduced across country & reduce risk of HIV.”

Deborah Gold, Chief Executive of NAT, 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.”

The NAT said it was “enormously disappointing that NHS England has decided to appeal this judgment, especially given the wide ranging and well-reasoned arguments it contains. The appeal will further delay clarity in this area, and mean that any potential commissioning of PrEP will not take place for months.”