In R (National Aids Trust & Local Government Association) v NHS Commissioning Board [2016] EWCA Civ 1100 the Court of Appeal considered an appeal by the NHS Commissioning Board (known as NHS England) concerning whether it had the power to fund a HIV anti-retroviral intervention known as pre-exposure prophylaxis, or PrEP. PrEP is designed for persons who are at high risk of exposure to infection with HIV (typically, by unprotected sexual intercourse with an infected person). PrEP consists primarily of the prescription of two kinds of anti-retroviral drug which are taken prior to the expected exposure, though they continue to be taken for a period thereafter. NHS England had reached the view that PrEP fell within the public health functions of the Secretary of State and local authorities, as allocated by the National Health Service Act 2006 and secondary legislation.
The first instance judge (Green J) had concluded that NHS England did have the power to commission PrEP on the basis that by section 1H of the 2006 Act NHS England had the same powers in respect of public health provision as the Secretary of State. The Court of Appeal reversed that conclusion stating that NHS England did not have general powers and duties in respect of public health matters. The Court also made observations on the difficulties of establishing the distinction between public health functions and other health functions.
However, the Court of Appeal concluded that NHS England did have the power to commission PrEP by reason of its powers under the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 to provide services for adults infected with HIV. The Court of Appeal held that although someone using PrEP was not infected with HIV, exposure to the risk of HIV infection fell within the scope of NHS England’s powers under the 2012 Regulations because the drug provided as part of the PrEP service would operate only if the person exposed to HIV became infected with HIV.
It will now be for NHS England to consider whether it is appropriate to commission PrEP nationally.
Jonathan Swift KC and Christopher Knight appeared for NHS England, instructed by DAC Beachcroft.
Joseph Barrett appeared for the Secretary of State as an Interested Party, instructed by the Government Legal Department.
