The Court of Appeal has ruled that NHS England legally has the power to provide funding for PrEP.
In May, following a consultation period, NHS England surprised many British health campaigners and LGBT advocates by stating that it would not provide funding for PrEP.
PrEP is a daily regime of medication that can be taken to minimize the risk of contracting HIV. It is available in the US, Canada and a handful of other countries.
In October, Norway became the first country in the world to make the medication available via its health service to those most at risk. This includes sexually active gay men.
NHS England said that it did not have the ‘legal power’ to provide funding for a preventative treatment, and that local authorities should provide funding.
This decision was widely criticized by health campaigners, who said that providing PrEP would save NHS England money in the long run as the cost of treating someone with HIV is estimated to be around £380,000 over the course of that person’s lifetime.
A legal challenge against the decision was launched by National AIDS Trust, and in August, the High Court ruled that NHS England could provide funding for PrEP . NHS England immediately launched an appeal against this decision.
Today, the Court of Appeal backed up the decision taken by the High Court and said NHS England does have the legal power to fund PrEP in England and Wales.
NHS England will now have to review its funding decision.
Commenting on the ruling, Deborah Gold, Chief Executive of NAT, said: ‘We are delighted to have been vindicated by the Court a second time.
‘HIV is a critical issue in the UK where over 4,000 people acquire HIV every year. PrEP works, it saves money, and most importantly it has the power to prevent HIV acquisition for thousands of people, at the same time as beginning to end the HIV epidemic.
‘This judgment brings that possibility one step closer. We look forward to what we hope will be a balanced and evidence-based decision on PrEP by NHS England, as well the opportunity to work alongside NHS England collaboratively for the benefit of people living with and at risk of HIV.’
Ian Green, Chief Executive of Terrence Higgins Trust, said: ‘PrEP is nothing short of a game-changer and, if used alongside condoms, regular testing and treatment, it could be the vital piece of the puzzle to help end the HIV epidemic for good.
‘Two courts have now ruled that NHS England does in fact have the legal power to fund PrEP. It is time for NHS England to do the right thing and respect its legal duty to consider funding this highly effective treatment.’
Ian Howley, interim CEO of gay men’s health charity GMFA said in a statement: ‘GMFA welcomes the High Court’s decision to uphold the previous court ruling that the NHS is lawfully able to provide pre-exposure prophylaxis (PrEP).
‘It’s been a disgrace that NHS England have been more concerned with paying for lawyers and dragging their heels over this, rather than getting on and commissioning PrEP for those who are most at risk.’
NHS England posted the following statement on its website in response to the ruling.
‘We welcome this judgment by the Court of Appeal which 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.
‘In the light of the Court ruling we will therefore now quickly take three actions. First, we will formally consider whether to fund PreP. Second, we will discuss with local authorities how NHS-funded PreP medication could be administered by the sexual health teams they commission.
‘Third, we will immediately ask the drug manufacturer to reconsider its currently proposed excessively high pricing, and will also explore options for using generics. We expect to be able to update on these developments shortly.’
— TerrenceHigginsTrust (@THTorguk) 10 November 2016