NHS England has been told by a High Court judge it can fund a “game changing” HIV drug after health bosses argued it was not their responsibility to do so.
The National Aids Trust (NAT) had taken legal action against the health service after officials said it was up to councils to provide the pre-exposure prophylaxis (Prep) drug as they are in charge of preventative health.
NHS England said it had received advice that it does not have the legal power to fund PrEP, a “highly effective” anti-retroviral drug used to stop HIV from becoming established in the event of transmission.
“NHS England has erred in deciding that it has no power or duty to commission the preventative drugs in issue.”
Mr Justice Green
However Mr Justice Green, sitting in London, ruled that NHS England “has erred in deciding that it has no power or duty to commission the preventative drugs in issue”.
NHS England said the Court’s ruling “interprets the legislation governing NHS England’s role and functions in a way that is inconsistent with Parliament’s intention”, and vowed to appeal. It will start funding for new treatments for those it considers a priority, and those patients will not be affected by any subsequent decision by the courts.
The Trust said NHS England’s decision to appeal is “enormously disappointing”.
A spokesperson said: “The appeal will further delay clarity in this area, and mean that any potential commissioning of PrEP will not take place for months.”
NHS England ‘mischaracterised the treatment’
Allowing NAT’s application for judicial review, Mr Justice Green said on Tuesday the core of the legal challenge was about “the allocation of budgetary responsibility in the health field”
He said: “No one doubts that preventative medicine makes powerful sense. But one governmental body says it has no power to provide the service and local authorities say 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..
“In my judgment the answer to this conundrum is that NHS England has erred in deciding that it has no power to commission the preventative drugs in issue.”
NHS England had “mischaracterised the PrEP treatment as preventative when in law it is capable of amounting to treatment for a person with infection,” the judge said.
Campaigners have said that while the majority of gay men use condoms to prevent being infected with HIV, there is also an “ethical duty” to provide PrEP to those who do not.
Additional defence against HIV
And they said the drug would provide an additional defence against HIV – and would not be used simply as an alternative to safe sex.
When taken consistently, PrEP has been shown to reduce the risk of HIV infection in people who are at high risk by more than 90 per cent.
“It is not a vaccine and it won’t be for everyone, but, once approved, we expect it to significantly increase the momentum in our fight against the virus,.”
Dr Michael Brady, medical director, Terrence Higgins Trust
Dr Michael Brady, medical director at the HIV/Aids charity Terrence Higgins Trust, welcomed the findings and said PrEP offered “another line of defence” against HIV, alongside condoms and regular testing.
“It is not a vaccine and it won’t be for everyone, but, once approved, we expect it to significantly increase the momentum in our fight against the virus,” he said.
“We urge the Government, NHS England and local authorities to make PrEP a key priority in the fight against HIV.”
NAT chief executive Deborah Gold said the study also showed that gay men “won’t just throw away the condoms as soon as they start taking PrEP”.
She said: “If we can stop people getting HIV by giving them PrEP, we have an ethical duty to do so.
“Furthermore, over the course of their lifetime the treatment of those 19 men (part of the trial group who became infected with HIV and were not taking PrEP) will cost the NHS nearly £7 million.
“So the financial argument is clear, as is the ethical one. PrEP needs to be available on the NHS as soon as possible for all those who need it.”
The health secretary, Jeremy Hunt, has already asked Nice – the National Institute for Health and Care Excellence – to consider the cost-effectiveness of PrEP.
About 4,000 people acquire HIV in the UK every year with more than 100,000 people in the UK living with the disease. The average cost of a lifetime of treating each one is put at about £360,000.
How the ruling will affect me
Harry Dodd, 25, is one of about 500 homosexual men in England who are taking PrEP as part of a trial called Proud.
“I’ve seen the panic on the face of previous boyfriends when they are awaiting their [HIV test] results – it’s a huge fear and it affects everything you do,” he told the BBC.
“To be able to have sex without having that fear hanging over you all the time is huge.”
Mr Dodd said taking PrEP has still not become socially acceptable.
“Too many people seem to think it will encourage a hedonistic lifestyle, but for me this is about saving lives. People reacted with cynicism when the contraceptive pill for women was first introduced.
“For me, taking PrEP has helped me to trust again, have relationships and build bridges and that shouldn’t be taken away.”
