NHS England loses appeal in court battle over HIV-preventing drugs

Illustrated rainbow pride flag on a pink background.

NHS England has lost a court appeal over HIV-preventing drugs, after claiming it was not responsible for commissioning them.

Pre-exposure Prophylaxis (PrEP) drug Truvada can reduce the risk of being infected with HIV by up to 86% if taken daily, and has been endorsed by the World Health Organisation and Centers for Disease Control and Prevention for at-risk men who have sex with men (MSM).

Earlier this year, NHS England ruled out a large scale roll-out for PrEP, instead opting to fund a limited two-year trial at “early implementer” sites.

When that decision was challenged, NHS England revised its policy and instead claimed that it was not responsible for commissioning the drugs, categorising it as a “public health intervention” and shifting the burden to local authorities.

As the dispute escalated the National AIDS Trust took the issue to court, winning a victory when the High Court ruled that NHS England is indeed responsible for commissioning PrEP.

Today, the Court of Appeal upheld the initial verdict, in favour of the National AIDS Trust.

The decision means that NHS England is obliged to consider commissioning PrEP.

Supporting the initial High Court judgment, the outcome means that NHS England will need to reveal its decision on whether PrEP will be recommended for funding.

Deborah Gold, Chief Executive of NAT, said: “We are delighted to have been vindicated by the Court a second time. HIV is a critical issue in the UK where over 4,000 people acquire HIV every year. 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. This judgement brings that possibility one step closer.

“We look forward to what we hope will be a balanced and evidence-based decision on PrEP by NHS England, as well the opportunity to work alongside NHS England collaboratively for the benefit of people living with and at risk of HIV.”

NAT were represented by Adam Hundt and Louise Whitfield of Deighton Pierce Glynn Solicitors. DPG’s Louise Whitfield commented: “I am very pleased that my clients have overcome NHS England’s arguments about why they could not fund this vital treatment.

“The Court of Appeal commented specifically that NHS England should have an internal mechanism to resolve such disputes, and we very much hope this is taken on board.”

Other HIV activists have welcomed the news.

Tory MP Mike Freer, Chair of the All-Party Parliamentary Group on HIV & AIDS, said: “I am obviously pleased with the outcome of this case.

“It is a breakthrough and the affect this will have on the lives of those living with HIV/AIDS will be ground-breaking. It will also serve as a preventative measure and properly address rising HIV rates in the UK.”

He added: “But it should never have got to this point. NHS England should have accepted the decision, and their responsibility, when the High Court ruled against them in May.

“Even after losing the case NHS England are seeking ways of wriggling out of their responsibility. They should accept they have lost their case and fund this crucial measure, as they fund other important preventive measures.”

Ian Green, Chief Executive of Terrence Higgins Trust, said: “PrEP is nothing short of a game-changer and, if used alongside condoms, regular testing and treatment, it could be the vital piece of the puzzle to help end the HIV epidemic for good.

“Two courts have now ruled that NHS England does in fact have the legal power to fund PrEP. It is time for NHS England to do the right thing and respect its legal duty to consider funding this highly effective treatment.

“The conduct of NHS England around the funding of this treatment has reminded us that, 30 years on, HIV is still stigmatised in a way that many other health conditions are not.

“Every day the NHS delays access to PrEP, 17 people are diagnosed with HIV – and the lifetime cost to the NHS for each diagnosis of HIV is £360,000. PrEP must be prioritised and made available now to those at risk.

“There is still a long way to go before people at risk have access to this groundbreaking pill that will protect them from HIV – but thanks to today’s decision, we are a step closer to a world without HIV transmissions.”

Rob Cookson, Deputy Chief Executive of LGBT Foundation, said:  “We are delighted at today’s decision to uphold the High Court ruling. We believe that PrEP would be a really important addition to the range of prevention options for gay, bisexual and other men who have sex with men (MSM). We therefore welcome the fact that NHS England will finally have to reconsider their decision on PrEP.

“LGBT Foundation has worked closely with a range of partner organisations and community activists to challenge the initial decision with PrEP by NHS England. We are extremely encouraged that NHS England is finally being asked to reconsider its decision on PrEP, but it is vital that community voices continue to be loud on this important issue.

“With over 2,500 MSM diagnosed each year in the UK, HIV remains a critical issue. While PrEP can, and should, play its part in helping to reduce HIV infections, PrEP doesn’t offer protection against acquiring other STIs.

“Condoms and regular HIV testing continue to remain very important. We thank everyone who has played their part, particularly the leadership of the National Aids Trust (NAT), in ensuring today’s outcome, and LGBT Foundation will continue to play its part in keeping PrEP in firmly in the spotlight.”

Dr Chloe Orkin, Chair of the British HIV Association (BHIVA), said: “We are pleased that the Court of Appeal has upheld the decision that NHS England is responsible for the funding of Pre-Exposure Prophylaxis (PrEP). It is a safe intervention that will reduce the risk of becoming infected with HIV by around 90%.

“The decision is in line with World Health Organisation recommendations and the view of NICE, which has evaluated PrEP using Truvada, finding it to be highly effective.

“We strongly support the policy proposal for MSM, transgender individuals and heterosexuals at high risk of HIV infection and will continue to make the case for PrEP to the Clinical Priorities Advisory Group (CPAG), which makes recommendations on NHS England’s approach to commissioning services, and treatments, and considers which of these should be prioritised for investment.

“Although this ruling is a positive step we regret that PrEP is still not available to the 17 people who contract HIV each day in this country.”