• Court of Appeal upholds judgment that NHS England has power to commission PrEP
  • If NHS England commissions drug it could result in other treatments earmarked for funding not being commissioned
  • Judge criticises Lansley reforms for creating “bureacratic squabbles” between NHS and local government on funding responsibilitie

NHS England has lost its appeal against a High Court judgment that it has the power to commission a preventative HIV drug.

On Thursday morning the Court of Appeal ruled in favour of the National AIDS Trust in a judgment that confirms the national commissioner can fund pre-exposure prophylaxis (PrEP).

Earlier in the year NHS England said it could not consider funding PrEP – which involves HIV negative people taking an antiretroviral drug to avoid getting the condition – because it did not have the legal power to commission it. The cost of commissioning the drug annually is estimated to be £10m-20m.

The responsibility for commissioning preventative medicine in relation to sexually transmitted diseases rested with local authorities, NHS England claimed.

The NAT lodged a judicial review to challenge the decision, and in August the High Court found in their favour. NHS England appealed the decision.

In the Court of Appeal judgment, Lord Justice Longmore said the “whole thrust” of NHS regulations is that “local authorities are not to be responsible for HIV patients but rather that NHS England is to be responsible for them”.

“If there is medication that can prevent susceptible persons from becoming infected and it is desirable that such medication be administered to reduce the overall bill for HIV services, NHS England has the power to commission such medication.”

The judge added: “Sadly it seems to follow that bureaucratic squabbles about apportionment of responsibility will be the inevitable consequence of the Lansley reforms.

“Whether it was further intended that the resulting bureaucratic squabbles should be resolved by spending taxpayers’ money to expensive solicitors and barristers is, perhaps doubtful. It would be far more sensible to have an internal mechanism for sorting out such disputes.”

The decision does not mean that PrEP will now become available on the NHS, but it does mean that NHS England will have to give consideration to commissioning it.

In its response to the judgment, NHS England said it would “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.”

If NHS England does commission PrEP, then it could result in other treatments which NHS England had provisionally earmarked for funding not being commissioned.

Deborah Gold, the NAT’s chief executive, said: “We are delighted to have been vindicated by the court a second time.

“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.”

The Local Government Association, which represented local authorities in the litigation, also welcomed the judgment.

Izzi Seccombe, the chair of the LGA’s community wellbeing board, 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.”

She added: “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.”