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High Court overturns NHS England refusal to commission HIV prevention

A decision by NHS England to stop commissioning the anti-HIV medication PrEP on the grounds that it should be the responsibility of councils has been overturned.

The High Court approved an application by the National AIDS Trust (NAT) for judicial review of NHS England’s decision to not include PrEP in the Clinical Priorities Advisory Group (CPAG) commissioning prioritisation process.

In his ruling, Mr Justice Green overturned NHS England’s argument that it does not have the power to commission PrEP under section 2 of the National Health Service Act 2006.

Deborah Gold, chief executive of the NAT, said: “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.

“Over 4,000 people are getting HIV every year in the UK – we desperately need further prevention options to add to condom use.  PrEP works. It saves money and it will make an enormous difference to the lives of men and women across the country who are at risk of acquiring HIV.  The delay to commissioning PrEP is both unethical and expensive.”

Green also ruled that there is no material difference between PrEP and PEP, a post-exposure treatment, which is commissioned by the NHS.

Cllr Izzi Seccombe, community wellbeing portfolio holder at the LGA, which was an interested party in the case, 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."

NHS England initially agreed to review the commissioning of PrEP in April, following a legal challenge by the NAT, but then announced that it would go ahead with stopping the provision of the drug.

It now said it would seek permission to appeal against the decision. In the meantime, it will open a consultation on a draft policy for the commissioning of PrEP, although there is no guarantee that it will be successfully chosen over other commissioning priorities.

It will also ask Gilead, the pharmaceutical company marketing Truvada, which is used in PrEP treatment, to submit its ‘best and final’ price for the drug.

Dr Jonathan Fielden, NHS England’s director of specialised commissioning and deputy national medical director, said: “Queen's Counsel has advised NHS England that it should seek to appeal against the conclusions reached by the judge as to the scope of NHS England’s legal powers under the National Health Service Act 2006. In parallel with that we will set the ball rolling on consulting on PrEP so as to enable it to be assessed as part of the prioritisation round.

“Of course, this does not imply that PrEP – at what could be a cost of £10-20m a year - would actually succeed as a candidate for funding when ranked against other interventions.”

NHS England also said that a £2m joint project with Public Health England to research commissioning PrEP in pilot areas will have to be reviewed if its appeal is unsuccessful.

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