High Court rules NHS can fund HIV-preventing drug

This article originally appeared on Lexis PSL.

Local Government analysis: The High Court has ruled that NHS England can fund the HIV prevention drug, pre-exposure prophylaxis (PrEP), holding that the NHS has the legal power to do so. But is this the end of the matter, and does it leave the responsibilities of local authorities in relation to public health and preventative measures any clearer? Georgia Ford, associate at Hempsons, looks in closer detail at the judgment.

Original news

National Aids Trust v NHS England [2016] EWHC 2005 (Admin), [2016] All ER (D) 19 (Aug)
The Administrative Court allowed the National Aids Trust’s (NAT) application for judicial review of the defendant National Health Service Commissioning Board’s decision to refuse to consider in its commissioning process an anti-retroviral drug to be used on a preventative basis for those at high risk of contracting AIDS. NHS England had misdirected itself in law when it had concluded that it had had no power to commission PrEP.

 

What is the background to this case?

This action was brought by the NAT against the National Health Service Specialised Commissioning Board (NHS England) in respect of NHS England’s decision to refuse to consider in its commissioning process an anti-retroviral drug (ARV), known as PrEP, to be used on a preventative basis for those at high risk of contracting AIDS.
NAT’s position was that the case for the use of PrEP is overwhelming, both economically and medically. It was argued that the potential savings of PrEP against the cost of ARVs after an individual is infected with HIV, may be considerable.

NHS England did not necessarily disagree with NAT’s proposition but were of the view that it did not have the power to commission PrEP on a preventative basis pursuant to the National Health Service Act 2006 (NHSA 2006). It argued that under NHSA 2006 and supporting legislation, it did not possess a power to perform ‘public health functions’ that are, it was argued, carried out by the Secretary of State for Health and local authorities. NHS England submitted that, pursuant to regulations promulgated by the Secretary of State for Health, local authorities now have responsibility for the provision of preventative medicine in relation to sexually transmitted diseases, which consequently pulls it out of the responsibility of NHS England.

The Local Government Association (LGA), the interested party, disagreed with NHS England in its analysis of the law, but also because the consequence of NHS England’s interpretation would be illogical as NHS England would be responsible for the majority of other HIV/AIDS policy, but leave the local authorities to deal with PrEP, which have no money in their budgets for such treatment in any event.

Further, the LGA argued, even if local authorities did have the money to allocate to the provision of PrEP, it would be the NHS that would gain the cost benefits of the local authorities’ expenditure. Finally, due to the significant budgetary constraints across local authorities nationally, if it was right that PrEP should be commissioned by them, it would likely result in regional variations in the provision of PrEP.

 

What did the court have to decide?

The court had to decide if NHS England s analysis of its decision that it has no power or duty to commission PrEP was correct. NAT contended NHS England was wrong in this decision for the following three reasons.

First, NHSA 2006, s 1H(2) states that NHS England is ‘subject to the duty under s 1(1) concurrently with the Secretary of State except in relation to the part of the health service that is provided in pursuance of the public health functions of the Secretary of State or local authorities’.

NHS England’s interpretation of NHSA 2006, s 1H(2) was that the exception referred to the scope of the duty under NHSA 2006, s 1(1). Therefore NHS England is subject to the duty except in relation to the part of the health service provided by the Secretary of State or local authorities.

NAT’s submission (with which the LGA agreed) was that the exception referred to the concurrency of the duty. Therefore NHS England is subject to the duty concurrently with the Secretary of State, except in relation to the part of the health service provided by the Secretary of State or local authorities where NHS England has the duty but not concurrently with the Secretary of State.

Second, PrEP was not a preventative treatment, but was a ‘treatment’ like post-exposure prophylaxis (PEP), which NHS England were currently funding.

Finally, NHS England would be able to fund under its general powers of NHSA 2006, s 2.

 

Does this judgment assist in clarifying the respective responsibilities between the NHS and local authorities in relation to public health generally and in particular to preventative measures?

Green J found in favour of each of NAT’s submissions above. While his judgment did not provide clarity as to the interaction between NHS England and local authorities in relation to public health generally, it does indicate that the NHS England’s commissioning responsibility under NHSA 2006 is extremely wide. The decision raises the question of what the role of local authorities under NHSA 2006 is given the breadth of NHS England’s responsibilities.
More clarification was provided in respect of preventative measures. Despite the very specific wording of regulation 11 and para 17 of Schedule 4 to the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, SI 2012/2996. Green J held that NHS England had the power to commission preventative measures in respect of treatment in the fiV. It remains to be seen whether this analysis will stand up to scrutiny in the Court of Appeal.

 

Is this decision likely to be of wider application in distinguishing NHS and local authority duties in relation to public health?

As set out above, this case does not make a clear distinction between the duties of NHS England and local authorities. What it does make clear is that NHS England has substantial and wide-ranging commissioning powers under NHSA 2006.

 

Georgia Ford was interviewed by Duncan Wood.