NHS England is legally responsible for the commissioning of pre-exposure prophylaxis (PrEP), an HIV drug, following a court ruling today.
The drug, which has been heralded as a “game changer”, has been shown to reduce the risk of HIV infection by more than 90%.
NHS England initially said that, because PrEP is preventative, it is not their responsibility and should be left up to local authorities to commission.
A statement released in May said the NHS sought legal advice, which found they did not have the “legal power” to commission the drug.
The National Aids Trust (NAT), however, successfully challenged this in court.
Today, Mr Justice Green concluded in his judgement that NHS England’s argument that “those treated with PEP [Post-exposure prophylaxis] are infected but those treated PrEP are not” is “not a sustainable proposition”.
He said: “Both PEP and PrEP are administered to persons who have not been diagnosed with HIV and as such in neither case can it sensibly be said that they are necessarily “infected” in a manner which can be scientifically proven.”
Mr Justice Green also refuted NHS England’s argument that PEP and PrEP are distinguishable in terms of risk and timing.
He said that if PEP is a cure then, “by parity of logic,” PrEP should also be considered a cure.
He said: “On the basis of the analysis above I can see no material difference between PEP and PrEP that would justify a different treatment of PrEP relative to PEP.”
Deborah Gold, Chief Executive of 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.”
In his judgement Mr Justice Green added: “No one doubts that preventative medicine makes powerful sense. But one governmental body says it has no power to provide the service and the local authorities say that they have no money.
“The Clamant 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.”
However, NHS England has decided to appeal the judgement, delaying any potential commissioning of PrEP
There will now be a 30-day public consultation on PrEP and an NHS England committee will consider the case for commissioning it.
But final decisions and actual commissioning will be contingent on the outcome of the appeal.