Tabloid pandering over the drug’s cost is contrived. After all, PrEP won’t be the only NHS subsidised sexual activity

Skip what an outraged Daily Mail said about the morality of the PrEP HIV drug battle between the National Aids Trust and NHS England’s commissioning board, Jeremy Hunt and the Local Government Association.

In paragraph four of his High Court judgment, Sir Nicholas Green hit the nail on the head when he declared: “At its core this judicial review is about the allocation of budgetary responsibility in the health field.”

Exactly. That makes it one of a running series of skirmishes across the public sector in the age of austerity, a small but emotive feature of an unavoidable resource war in which the scarce commodity in dispute isn’t oil, water or even morality. It’s money.

Sensation seeking

What always makes for interest is how these questions are framed by protagonists, by judges and politicians, ultimately by the public via the prism of our sensation-seeking media, which often seeks to pander as much as to inform.

‘As the raucous tabloids failed to spot, Mr Justice Green turns out to have form’

As the raucous tabloids failed to spot, Mr Justice Green turns out to have form.

Last year it was his court that ruled against the tobacco companies which sought judicial review on the grounds that the imposition of plain packaging rules on their products (at the World Health Organisation’s instigation) was an illegal expropriation of their valuable intellectual copyright: the much hyped and promoted brands which make smoker X pick cigarette Y as his/her chosen method of attempted suicide.

Common sense

In a judgment that reads like robust common sense, Judge Green decided that there had been no expropriation because the tobacco boys still own their brands and can still deploy them on fag packets, albeit in a “very limited vestigial way” to flog their soothing poisons. Moreover they had to be set against evidence-based “legitimate public health interests” in discouraging smoking.

‘Stale cigarette smoke now feels light years away, doesn’t it?’

Newspapers and TV that used to make a lot of advertising revenue out of the industry are not so outspoken in protecting the interests of their readers here, often preferring to attack “nanny state interference” during the long war over tobacco.

Stale cigarette smoke now feels light years away, doesn’t it? As for death from lung cancer, still 35,900 in 2014 or one in five of the 163,000 UK cancer deaths, the male rate has been halved, though (as with drinking) women’s emancipation took them the other way.

Self harm

But (unless you count those glamorous, now banned adverts) cancer mostly isn’t about sex, only about the right to self harm on the NHS, which reckless skiers and cyclists, horse riders and motorists, not to mention indulgent overeaters, also assert. So less primitive emotions are engaged and tabloid condemnation – “Give fat patients £100 an hour therapy on NHS, doctors are told” – less imperious.

‘Judge Green cut through the moral jungle quite comfortably’

But these are costly vices acknowledged by many more of their readers, as unsafe gay sex is not. Never mind, Judge Green cut through the moral jungle quite comfortably.

NHS England’s lawyers had argued that pre-exposure PrEP is a preventive treatment to stop gay men catching HIV from infected partners and thus the responsibility of local public health authorities under the NHS Act (2006). On their behalf the Local Government Association protested it doesn’t have the money and that the NHS, much better funded since austerity began, could intervene if it chose to do so.

Splitting hairs

Taking what m’learned friends call the “purposive” view of Parliament’s legislation (what did MPs really mean?) Sir Nick agreed with the campaigners who brought the case. The distinction between PEP given to those already infected and PrEP did not get NHSE off the hook.

‘Gay men, like heavy drinkers and reckless cyclists, should take better care of themselves’

In providing PrEP it could be assumed the recipient was infected and the drug both a cheaper and preventive remedy, preferable to the £360,000 which a lifetime on retroviral drugs can reportedly cost. The financial ramifications of “competing budgetary constraints” – NHS vs LGA members – is “a matter for government to resolve”, he said. Quite so.

I can follow that while also thinking that gay men, like heavy drinkers and reckless cyclists, should take better care of themselves. But what followed the ruling surprised me.

Tough choices

To the alarm of fastidious campaigners NHSE (which plans an appeal) deliberately chose to frame the decision in terms of the emotive choices it will now have to make: PrEP at £360 a month or a drug for kids with cystic fibrosis?

‘You can get Viagra and much else from the GP (so they tell me)’

PrEP or prosthetic knees for amputees and stem cell treatment for rare cancers? The cue prompted the resourceful Mail to link the case to its campaign for cataract sufferers facing the NHS’s surgery lottery.

I’m all in favour of confronting patients/voters with the harsh realities of NHS budget choices, the shocking cost of obesity (£1bn a year on prescriptions alone) an obvious one.

Triumphant HIV campaigners on TV struck me as pretty casual about the cost, as such folk usually are. But the tactic also struck me as a tabloid pander too far. After all, PrEP won’t be the only NHS subsidised sexual activity. You can get Viagra and much else from the GP (so they tell me).

Michael White writes about politics for the Guardian