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PrEP judicial review succeeds!

The High Court has decided that NHS England’s controversial decision that it does not have the power to fund Pre-Exposure Prophylaxis (PrEP) for HIV was wrong.  Subject to any appeal, NHS England’s Clinical Priorities Advisory Group will now decide whether to prioritise PrEP for commissioning later this year. Judgment was handed down on 2 August 2016, and can be accessed here.

PrEP has been described as a “game-changing” drug, following trials which have unequivocally demonstrated that it reduces the risk of transmission of HIV.  After over 18 months of collaborative work involving the National Aids Trust (NAT) and many others, NHS England suddenly and unexpectedly pulled the plug on the well-formulated plan for PrEP to be provided on the NHS for high-risk groups, claiming that it didn’t have the legal power to commission PrEP because local authorities should do so, as it is a public health intervention that is not provided to people who are infected with HIV.  Local authorities made it clear that they would not be in a position to provide PrEP due to lack of specialist expertise and bargaining power with pharmaceutical companies, and lack of funds.

NAT instructed us in March to apply for judicial review of this decision, and we sent an urgent letter before claim pointing out, in detail, the legal flaws in the decision.  At the eleventh hour, as the papers were on the way to Court to begin court action, NHS England agreed to reconsider its decision, but it then reached the same decision again, so court action was be required after all.  The trial took place on 13 July 2016, and judgment was handed down on 2 August.  The Honourable Mr Justice Green emphatically found in NAT’s favour.

The partner with conduct of this case is Adam Hundt. He commented:

“Because of the way NHS England defended its position, this case became about more than ‘just’ PrEP.  NHS England argued that it had no power to provide any public health interventions, despite prevention strategies being at the heart of its Mandate and its Five year plan.  The judge firmly decided that preventative and public health interventions can be provided by NHS England, which makes both legal and financial sense.  There should now be no barriers to NHS England commissioning treatment that is safe, effective and cost-efficient.”

Karon Monaghan QC of Matrix Chambers and Zoe Leventhal of Landmark Chambers were instructed as Counsel.