The must read stories in health from Tuesday

NHS England loses judicial review

On Tuesday NHS England lost a judicial review about whether it has the power to commission the preventative HIV drug pre-exposure prophylaxis (PREP).

The national body said it could not consider funding PREP – which involves HIV-negative people at risk of acquiring the disease through unprotected sex taking an antiretroviral drug to avoid getting infected – because it did not have the legal power to commission it. NHS England claimed the responsibility rested with local authorities.

The National Aids Trust, which lodged the judicial review, thought differently. So did the Local Government Association, which represented councils as an interested party in the case.

And so eventually did Mr Justice Green, who judged that NHS England had “erred” in deciding it had no power or duty to commission the drug.

The judgment doesn’t mean PREP will now definitely be funded. NHS England is appealing the decision, and even if that appeal fails the drug will still have to be weighed up against other treatments in a re-run of NHS England’s “prioritisation process” to determine whether it is sufficiently cost-effective to deserve funding.

Nevertheless, the decision is highly significant for a number of reasons. First, it could result in nine treatments which were provisionally approved for commissioning being displaced if PREP is judged to represent better value for money.

Second, the judgment brings greater clarity to the contested borderline between NHS England and local authorities, which was created by the shifting of responsibility for public health to the latter in the Health Act 2012.

Lastly, the case is symptomatic of the huge pressure on NHS England’s specialised services budget. In an effort to keep a lid on the budget, NHS England has had to resort to a number of highly contentious moves to limit its liabilities.

The problem for NHS England is that these are challengeable in court. This is the second case NHS England has lost in recent months involving the commissioning of drugs, after it was ordered by the High Court in May to fund treatment for a teenager with narcolepsy.

And now there’s another judicial review looming on the horizon – the Hepatitis C Trust is challenging NHS England’s decision to cap access to groundbreaking new drugs.

Will this case be “third time lucky” for NHS England?

Arm’s length row

A senior Care Quality Commission board member has raised concerns about the regulator’s relationship with NHS Improvement, saying NHSI “throws around [the CQC’s] name relatively indiscriminately”.

Non-executive director Michael Mire questioned the regulator’s recent involvement in the NHS financial “reset”, which, among other measures, identified 63 providers that may have to cut “excess” pay bill growth.

Mr Mire also hinted at wider concerns with how the CQC ensures quality is upheld during the current challenging financial environment. He said he had written to chief executive David Behan to outline his feelings on the current situation, which he described as presenting “a very fundamental challenge for us”. 

HSJ has requested the letter but the CQC declined.