High Court overturns NHS decision not to commission HIV-preventing PrEP drugs

A High Court judge has ruled against NHS England’s decision not to fund a drug that can prevent HIV.

A leading HIV charity has won a High Court battle over whether a preventative treatment for HIV which charities say is a “game-changer” can legally be funded by the NHS.

The ruling was a victory for the National Aids Trust (NAT), which brought the case to court after NHS England refused to commission a large scale role for PrEP.

Mr Justice Green ruled that NHS England “has erred in deciding that it has no power or duty to commission the preventative drugs in issue”

Pre-Exposure Prophylaxis (PrEP) drug Truvada can reduce people’s chances of being infected with HIV by up to 99 percent, if taken daily.

Though the drug is endorsed by the World Health Organisation and is available to at-risk gay men in a number of countries, NHS England has repeatedly deferred a decision on the drugs – despite a pilot scheme showing that the drugs were incredibly effective at reducing HIV transmission among men who have sex with men (MSM).

In July, NHS England ruled out a large scale roll-out for PrEP, instead opting to fund a further two-year trial at “early implementer” sites – claiming that it does not have authority to commission the drugs.

However, sexual health groups say the decision puts men at risk, while London Councils accused the NHS of “playing a waiting game” – stringing out a decision until drug patents expire.

In the wake of the announcement last month, The National AIDS Trust (NAT) went to the High Court to challenge the legality of NHS England’s decision to remove PrEP from its commissioning process.

The filing questioned why NHS England had consulted on making PrEP available in the first place, given it now retroactively claims it has no legal authority to do so.

Following the charity’s win, NAT CEO Deborah Gold told PinkNews: “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 judgment has confirmed our view – that it is perfectly lawful for NHS England to commission PrEP.  Now NHS England must do just that. ”

In his judgement Mr Justice Green wrote: “No one doubts that preventative medicine makes powerful sense.

“But one governmental 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.”

Ian Green – Chief Executive of Terrence Higgins Trust – added: “We are relieved that, at last, we know who is legally responsible for making the game-changing HIV prevention treatment PrEP available to people who are at risk.

“It is a vindication for the community after a long fight – but it should never have come to this.

“Because of the mess and delays created by NHS England, people at risk of HIV have spent the past 18 months fighting to be heard, meanwhile 17 people have been diagnosed with HIV with every day that has passed.”

The Local Government Association’s Community Wellbeing Portfolio Holder, Cllr Izzi Seccombe, said:

“We are pleased that today’s ruling confirms our position that NHS England has the power to commission the HIV treatment PrEP.

“We firmly rejected the argument by the NHS that it should fall to councils.

“We argued that NHS England was wrong in law and that its power includes commissioning for preventative purposes, such as HIV-related drugs.

“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.”

It is expected that NHS England will appeal the High Court’s decision.