NHS does have power to commission PrEP HIV service, appeal court rules

NHS England has lost its appeal over a High Court ruling that it has the legal power to commission PrEP, a "game changer" service in the fight against HIV/Aids.

PrEP, short for "pre-exposure prophylaxis", is a prevention strategy which involves people who are HIV negative but at high risk of infection taking the anti-retroviral drug Truvada to reach optimal levels of protection.

NHS England argued it cannot legally commission PrEP because local authorities have the responsibility to arrange services to "prevent" the spread of HIV, while its own responsibilities are limited to treating those already assumed to be infected. Three Court of Appeal judges have rejected the argument and ruled that NHS England does have the power.

Royal Courts of Justice on the Strand
The decision was made at the Royal Courts of Justice on the Strand (Anthony Devlin/PA)

The anticipated cost of providing PrEP services is £10 million to £20 million a year. Used consistently, it has been shown to reduce the risk of HIV infection in people who are at high risk by more than 90%.

The legal decision is of wider importance because of its potential impact on the provision of other services, including hearing implants for children with deficient or missing auditory nerves, prosthetics for lower limb loss, and a drug for treating certain mutations in children aged two to five with cystic fibrosis.

Nine new treatments and services NHS England had planned to make available to patients were put on hold pending the court's ruling.

Prince Harry speaks to staff including Chairman of Guy's and St Thomas' NHS Foundation
Prince Harry met with the NHS Foundation Trust in July to highlight the fight against HIV and AIDS (Chris Jackson/PA)

In May, NHS England's specialist services commissioning committee decided not to commission PrEP, saying it lacked the power to do so under NHS legislation and regulations. But an appeal from High Court Mr Justice Green said it did have the power under the NHS Act 2006 and under regulations made in 2012 which came into effect in April 2013.

On Thursday three appeal judges - Lord Justice Longmore, Lord Justice Underhill and Lady Justice King - agreed unanimously that NHS England's appeal must be dismissed.

The ruling was a victory for leading charity the National Aids Trust (NAT) with backing from the Local Government Association (LGA). NAT said the decision means NHS England is obliged to give due consideration to commissioning PrEP.

Deborah Gold
Deborah Gold, chief executive of the National Aids Trust, attended the Royal Courts of Justice in August over the issue (Jonathan Brady/PA)

"We are delighted to have been vindicated by the court a second time," said Deborah Gold, chief executive of NAT. "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 judgment 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."

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