NHS England cites legal advice in declining to commission HIV treatment
The Specialised Services Commissioning Committee of NHS England has accepted external legal advice and concluded that it does not have the legal power to commission the new HIV treatment, PrEP.
The decision came after NHS England had agreed, under pressure from stakeholders, to reconsider its original view.
The announcement has been described by the Local Government Association as “hugely disappointing”.
The paper before the committee and the legal advice can be viewed here.
In the memo DAC Beachcroft considered the legal position under the National Health Service Act 2006, the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 and the NHS public health functions agreement 2016-17.
The law firm concluded that:
- NHS England will have power to commission services for preventing HIV transmission, including PrEP, unless those services are provided pursuant to the public health functions of the Secretary of State or local authorities.
- Provision of services to prevent the spread of sexually transmitted infection is a public health function of local authorities.
- Preventing the sexual transmission of HIV to uninfected people is not excluded from that local authority function. Therefore NHS England does not have power to fund PrEP for that purpose.
- There are tenable counter arguments to the conclusion that NHS England does not currently have power to commission PrEP but they are not strong.
- NHS England must be aware that groups sharing certain protected characteristics have a particular interest in PrEP, but NHS England's equality duties cannot expand its legal powers.
After the committee meeting NHS England said it remained committed to working with other commissioners to explore the possible provision of PrEP, a way of using anti-retroviral drugs to stop viral transmission.
This would include working in partnership with Public Health England to run a number of early implementer test sites, backed with up to £2m investment over the next two years, to research how PrEP could be commissioned in the most clinically and cost effective way.
NHS England said: “It should further be noted that, even if this were not the legal position, there is no guarantee that the annual prioritisation round would result in a decision to invest millions of pounds in PrEP over new treatments and interventions in other service areas which are also competing for funding.”
A spokesperson for the Local Government Association said: “This is hugely disappointing and a missed opportunity to launch a ground-breaking method of treatment which could halt the spread of HIV and potentially save lives.
“Councils have invested millions in providing sexual health services since taking over responsibility for public health three years ago, and the PrEP treatment could help reduce levels of HIV in the community.
“During the transition period to the implementation of the NHS and Care Act 2010, NHS England sought to retain commissioning of HIV therapeutics, which the PrEP treatment clearly falls into. It is, and should remain, an NHS responsibility unless it is fully funded for local authorities to pass on.
“Councils are already having to manage significant funding reductions to their public health budgets of £500m over five years and NHS England’s decision not to commission PrEP will only heap more pressure on public health services.”
In March this year, NHS England issued a statement that said: ‘As set out in the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013, local authorities are the responsible commissioner for HIV prevention services.
“Including PrEP for consideration in competition with specialised commissioning treatments as part of the annual CPAG prioritisation process could present risk of legal challenge from proponents of other ‘candidate’ treatments and interventions that could be displaced by PrEP if NHS England were to commission it.’