The ruling by the Court of Appeal on November 11, 2016 put to bed a disagreement in England over which authority was responsible for the provision pre-exposure prophylaxis (PrEP). PrEP is a single pill that can be taken once a day to prevent those who are substantially at risk of acquiring HIV from developing the disease. The High Court had previously ruled that NHS England had the power to commission PrEP but NHS England took the point to an appeal.
NHS England put forward a technical argument claiming that the provision of PrEP was a public health function that had been delegated to local authorities under the Health and Social Care Act 2012 (‘2012 Act’) and secondary legislation. It argued therefore that there was no duty (and thus no power) for NHS England to commission PrEP.
PrEP has the potential to substantially reduce the number of new infections in those groups who are most at risk of acquiring HIV. 103,700 people were diagnosed as living with HIV in the UK in 2014 with 6,151 new infections that year. Men who have sex with men (MSM) remain in a group that is at high risk of acquiring new infections.
Over 2014/2015 a review was undertaken and a draft policy proposal formulated recommending routine commissioning of PrEP. NHS England rather than taking up the recommendation argued that it did not have the power to do so. PrEP can only work if there is access to it and the dispute in the English courts has led to a delay in the potential roll out of PrEP.
There has been an accusation that the case was brought to stall commissioning of PrEP. Truvada, the commercial name for PrEP, comes off patent in 2018 which could potentially lower the cost of commissioning PrEP significantly. The Court criticized NHS England’s approach in the case as being ‘too legalistic’ and for bringing ‘bureaucratic squabbles’ before it. The Court noted that NHS England did not dispute that the Secretary of State for Health had the authority to delegate the commissioning of PrEP to NHS England, but it asserted that this would need to be ‘accompanied by appropriate funding’.
NHS England’s decision to appeal the case should be taken in the context of increasing strain on NHS England’s budget. PrEP has already been attacked as a diversion of funds away from other health priorities. The Court was careful in its judgement to stress that whilst NHS England had the power to commission PrEP it was not obliged to. The lack of adequate funding for PrEP may be used to foment disagreement over budget allocation by NHS England.
PrEP represents a highly effective means of reducing HIV infection allowing those most at risk to lessen the risk of contracting HIV. The ruling from the Court of Appeal represents an opportunity for NHS England to commit to commissioning PrEP and a chance to call on the Department of Health to commit to adequate financing for PrEP.
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