Local authorities have welcomed a Court of Appeal ruling that NHS England has the power to commission the HIV treatment PrEP (pre-exposure prophylaxis).
The question at the root of NHS England’s appeal in National Aids Trust, R (On the Application Of) v The National Health Service Commissioning Board (NHS England) & Ors  EWCA Civ 1100 was out of whose budget the cost of PrEP medication was to be paid (the budget of NHS England or that of local authorities) if a decision was made that it should be made available to appropriate individuals.
NHS England argued that it did not have power to commission the drug and that councils should meet the cost as it was a public health intervention.
The Local Government Association was one of the parties in the case. The Chairman of its Community Wellbeing Board, Cllr Izzi Seccombe, said: "We are pleased that today's ruling by the Court of Appeal confirms our position that NHS England has the power to commission the HIV treatment PrEP.
“We were disappointed that NHS England chose to challenge the High Court decision, at great expense to the taxpayer and at a time when council and health budgets are under huge pressures. We argued that NHS England was wrong in law and that its powers include commissioning for preventative purposes, such as HIV-related drugs.”
Cllr Seccombe added: "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 now hope this decision will provide much-needed clarity around the roles of councils and the NHS on prevention services. It also demonstrates that both parties have the joint responsibility of ensuring we can deliver an integrated sexual health system as Parliament originally intended.”
She said: “It is time for NHS England to stop delaying and finally determine whether to commission this treatment, which could greatly reduce the risk of HIV infection.”
The National Aids Trust, which brought the case, also welcomed the Court of Appeal’s judgment. Chief executive Deborah Gold said the charity had been vindicated by the Court a second time.
“HIV is a critical issue in the UK where over 4,000 people acquire HIV every year. PrEP works, it saves money, and most importantly it has the power to prevent HIV acquisition for thousands of people, at the same time as beginning to end the HIV epidemic,” she said.
“This judgment brings that possibility one step closer. We look forward to what we hope will be a balanced and evidence-based decision on PrEP by NHS England, as well the opportunity to work alongside NHS England collaboratively for the benefit of people living with and at risk of HIV.”
NAT were represented by Adam Hundt and Louise Whitfield of Deighton Pierce Glynn Solicitors. Whitfield said: “The Court of Appeal commented specifically that NHS England should have an internal mechanism to resolve such disputes, and we very much hope this is taken on board.”
In a statement NHS England welcomed the Court of Appeal’s decision, which it said set out “three important rulings”:
- It established that NHS England had the ability but not the obligation to fund PReP.
- It meant that should NHS England decide to do so, it would not be subject to legal challenge on these grounds from rival ‘candidates’ for specialised commissioning funding.
- It overturned the High Court “in helpfully clarifying that Parliament did not intend that the NHS was expected to fund local authorities’ public health responsibilities just because they have not done so”.
NHS England added: “In the light of the Court ruling we will therefore now quickly take three actions. First, we will formally consider whether to fund PreP. Second, we will discuss with local authorities how NHS-funded PreP medication could be administered by the sexual health teams they commission. Third, we will immediately ask the drug manufacturer to reconsider its currently proposed excessively high pricing, and will also explore options for using generics. We expect to be able to update on these developments shortly.”
Deighton Pierce Glynn instructed Zoe Leventhal of Landmark Chambers, Karon Monaghan QC of Matrix Chambers, and Javan Herberg QC of Blackstone Chambers.
Jenni Richards QC and Nicola Greaney of 39 Essex Chambers appeared for the LGA, instructed by Monica Blades-Chase.
Jonathan Swift QC and Christopher Knight of 11KBW appeared for NHS England, instructed by DAC Beachcroft. Joseph Barrett of 11KBW appeared for the Secretary of State for Health, instructed by the Government Legal Department.