NHS can fund "game-changing" HIV drug, High Court rules

NHS England can fund a new drug that can prevent HIV, the High Court has ruled.

Health chiefs had argued that it was up to local authorities to fund the drug, known as pre-exposure prophylaxis or Prep, because they are responsible for preventative health. The Local Government Association said it "firmly rejected" that argument.

The NHS estimates the cost of Prep at between £10m and £20m a year.

The National Aids Trust launched a legal challenge through a judicial review, arguing that with 4,000 people getting HIV every year, Prep is a "game-changing" treatment that is urgently needed and shown to be cost-effective. It claimed there was no legal impediment to NHS England commissioning the drug.

The High Court agreed with the charity, saying the NHS had acted unlawfully in withdrawing Prep after 18 months of groundwork.

In his judgement, Mr Justice Green wrote: "No one doubts that preventative medicine makes powerful sense. But one government body says it has no power to provide the service and the local authorities say that they have no money. The claimant 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."

Deborah Gold, chief executive of the 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 judgement has confirmed out view that it is perfectly lawful for NHS England to commission Prep. Now NHS England must do just that.

Cllr Izzi Seccombe, community wellbeing portfolio holder for the Local Government Association, said: "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.

"The LGA was an interested party in court, having decided to take action on behalf of our member authorities. By successfully challenging NHS England's interpretation of the law, we believe this will provide much-needed clarity around the future 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."

But NHS England said it will appeal the ruling.

"Queen's Counsel has advised that the court's ruling interprets the legislation governing NHS England's role and functions in a way that is inconsistent with parliament's intention," a statement read.

"On this basis, NHS requested permission to appeal the judgement, which was granted with a commitment to expedite the hearing as far as possible."

A draft policy proposition on the potential commissioning of Prep will be published for public consultation but NHS England said this does not imply that the drug "would actually succeed as a candidate for funding when ranked against other candidate interventions in this year's annual specialised commissioning prioritisation round".

Gold described the decision to appeal as "enormously disappointing".

"The appeal will further delay clarity in this area, and mean that any potential commissioning of Prep will not take place for months," she said.

"Following this decision, there will now be a 30-day public consultation on Prep, which should start almost immediately, and an NHS England committee will consider the case for commissioning it, but final announcements and actual commissioning will be contingent on the outcome of the appeal."