A high court judge has been asked to overturn an decision on funding for a preventive treatment for HIV that charities say is a “gamechanger”.
Mr Justice Green, sitting in London, heard a challenge brought by the National Aids Trust (NAT) against NHS England.
The judicial review action relates to pre-exposure prophylaxis (PrEP), an antiretroviral drug used to prevent HIV from becoming established in the event of transmission.
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%.
This year NHS England said it would not routinely fund the drug as it had decided the treatment was a preventive service and therefore not its responsibility.
NHS England agreed to a re-evaluation after NAT launched a legal challenge.
But in May it said it had “considered and accepted NHS England’s external legal advice that it does not have the legal power to commission PrEP” and that under 2013 regulations “local authorities are the responsible commissioner for HIV prevention services”.
It stated that if it prioritised PrEP, there was the risk of a legal challenge from proponents of other “treatments and interventions that could be displaced by PrEP”.
NAT, an independent charity, is challenging the decision to exclude PrEP from consideration by NHS England’s clinical priorities advisory group (CPAG).
It argues that the body does have the legal power to commission the drug.
Karon Monaghan QC, for NAT, submitted to the judge on Wednesday that the May decision was unlawful on three grounds.
The charity contends that NHS England has “misdirected itself as to its own statutory powers to commission PrEP”, failed to “have regard to the need to reduce inequalities in the provision of health services”, and “breached the claimant’s legitimate expectation that PrEP would be progressed through the CPAG process”.
Monaghan told the court that NAT’s complaint was that PrEP “will not be considered at all as a consequence of the defendant’s error of law as to its powers”.
NAT is seeking an order quashing the decision that PrEP will not be considered by the advisory group.
Deborah Gold, the NAT chief executive, said before the hearing:
“Local authorities do not have sole responsibility for HIV prevention in England. NHS England has a clear role in prevention. Our view, and the view of our legal advisers, is that there is nothing to prevent the NHS from commissioning PrEP should it wish to. This has highlighted a huge issue with our health system. It is simply unacceptable that we are having to go to court to clarify who has responsibility for commissioning such an important innovation. We are very hopeful that the court will agree with the case we are making.”
“The outcome will have significant implications for future funding of public health interventions in this country. Not to mention the thousands of people who need access to PrEP now.”
NHS England is contesting the action.