NHS England appeal against PrEP ruling defeated

A legal ruling that NHS England, not local government, is responsible for commissioning HIV prevention drug PrEP has been upheld by the Court of Appeal.

The Court of Appeal rejected NHS England’s appeal against a High Court ruling in August that it has responsibility for the drug, which is taken by those with a heightened risk of HIV to prevent infection.

The National Aids Trust (NAT) sought judicial review to challenge the decision, which NHS England made after arguing that councils should take responsibility for PrEP as part of their public health remit.

The ruling means that NHS England will have to decide whether PrEP is among the medical treatments it chooses to commission.

Deborah Gold, chief executive of the NAT, said: “We are delighted to have 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. This judgement 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.”

NHS England will now be obliged to consider whether to pay to commission PrEP. If it decides in favour, it may be unable to fund some other treatments.

In a statement, NHS England said it “welcomed” the decision, which showed that it had “the ability but not the obligation” to fund PrEP.

It added that the Court of Appeal ruling, unlike the High Court ruling, clarified that the NHS did not have to “fund local authorities’ public health responsibilities just because they have not done so”.

NHS England explained it would now decide whether to fund PrEP, discuss with local authorities how PrEP could be administered by their sexual health teams, and ask the drug manufacturer to reconsider its pricing.

Ian Green, chief executive of the Terrence Higgins Trust, said: “Two courts have now ruled that NHS England does in fact have the legal power to fund PrEP.  It is time for NHS England to do the right thing and respect its legal duty to consider funding this highly effective treatment.”

Green noted that NHS England’s handling of the case had shown that “HIV is still stigmatised in a way that many other health conditions are not”.

After the ruling in August, Green wrote to Simon Stevens, the CEO of NHS England, accusing the service of being “intentionally provocative, homophobic, offensive and inaccurate” for describing PrEP as a treatment especially for men who have condomless sex with other men.

Dr Richard Torbett, commercial executive director of the Association of the British Pharmaceutical Industry, said the case showed that NHS England's system for specialised commissioning was "opaque and unpredictable".

"Instead of attempting to negotiate pricing through press releases, we believe that NHS England should comprehensively assess the value of a medicine to patients, through a clearly laid out commissioning and decision-making process," he said. "This will give patients and industry confidence that NHS England is making fair and appropriate decisions."

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