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NHS England loses appeal over PreP drugs

Court of Appeal rules that NHS in England has the power to fund pre-exposure prophylaxis for HIV

Ingrid Torjesen

Thursday, 10 November 2016

The Court of Appeal has upheld a High Court decision that the NHS in England has the power to fund pre-exposure prophylaxis (PreP) drugs which can prevent HIV infection in people at high risk.

NHS England had argued that local authorities should fund the PreP drugs because they are responsible for preventative health, but the Court of Appeal agreed with the High Court that funding the drugs fell within the remit of the NHS. In August, the High Court told NHS England it could fund the drug because it was wrong to classify PreP as preventative, given that they act in the body to treat infection.

Welcoming the Court of Appeal’s, chairman of the Local Government Association's community wellbeing board, Cllr Izzi Seccombe, said: "We were disappointed that NHS England chose to challenge the High Court decision, at great expense to the taxpayer and at a time when council and health budgets are under huge pressures.

"We argued that NHS England was wrong in law and that its powers include 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 now hope this decision will provide much-needed clarity around the roles of councils and the NHS on prevention services. It also demonstrates that both parties have the joint responsibility of ensuring we can deliver an integrated sexual health system as Parliament originally intended.

"It is time for NHS England to stop delaying and finally determine whether to commission this treatment, which could greatly reduce the risk of HIV infection."

In a statement NHS England said that it too welcomed the judgment by the Court of Appeal, because it sets out three important rulings.

“First, it establishes that NHS England has the ability but not the obligation to fund PreP. Second, it means that should we decide to do so, we would not be subject to legal challenge on these grounds from rival ‘candidates’ for specialised commissioning funding. Third, it overturns the High Court in helpfully clarifying that Parliament did not intend that the NHS was expected to fund local authorities’ public health responsibilities just because they have not done so.”

The statement added that in light of the Court ruling NHS England “will formally consider whether to fund PreP”, “discuss with local authorities how NHS-funded PreP medication could be administered by the sexual health teams they commission” and “ask the drug manufacturer to reconsider its currently proposed excessively high pricing and “explore options for using generics”.

An estimated 14,000 people would be eligible for PreP in England.

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