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High Court rules that NHS England has a duty to commission and pay for preventative HIV treatment

National Aids Trust v National Health Service Commissioning Board (NHS) England [2016] EWHC 2005 (Admin)

The High Court ruled that NHS England has the power to commission preventative HIV drugs.  The case concerned the commissioning of a preventative HIV anti-retroviral treatment called pre-exposure prophylaxis (PrEP).  The drug would be administered to a HIV-negative patient in order to provide protection where they are at high risk of exposure to the virus.  The drug could reduce infection by at least 86%.  NHS England decided that it was not responsible for commissioning HIV prevention services and that the responsibility was with local authorities.  The National Aids Trust challenged the decision. 

The NHS Act 2006 imposed a duty on NHS England to promote and commission health services, except in relation to public health functions carried out by the Health Secretary or local authorities.  Green J found that the provision was not about limiting scope but clarifying that NHS England shared its duty concurrently with local authorities.  The NHS also argued that it only had a duty to commission treatment of those infected by HIV not to prevent it.  The Court held that treatment expressly includes prevention, examination and diagnosis and included health services for those infected by HIV.

NHS England is currently appealing this matter.  Even if the High Court judgment is upheld, the NHS may still choose not to commission PrEP.

For UK Human Rights Blog article click here.

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