National Aids Trust, R (On the Application Of) v The National Health Service Commissioning Board (NHS England) & Ors

Whether an intervention is a public-health function cannot be decided solely by asking whether it prevents illness. The statutory scheme must be read with the commissioning regulations, which help define the boundary between public-health and non-public-health responsibilities. Specialist HIV services assigned to NHS England may include PrEP, even though it is prescribed before infection and takes effect when infection occurs. NHS England therefore has power to commission PrEP. That power is not an obligation: NHS England must still decide whether provision is a reasonable requirement under the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. The public-health carve-out remains effective, subject to the Secretary of State’s power to delegate functions.

NHS England appealed from Green J’s decision in the Administrative Court, reported at [2016] EWHC 2005 (Admin). The dispute concerned whether NHS England could commission pre-exposure prophylaxis medication for people at high risk of contracting HIV, or whether responsibility lay with local authorities as part of their public-health functions. The appeal required construction of the National Health Service Act 2006, the 2012 commissioning regulations and the corresponding local-authority regulations. The central issue was whether commissioning PrEP fell within the statutory public-health exception or within NHS England’s specialist HIV commissioning responsibility.

1. Disposition. The appeal was dismissed. NHS England had power to commission PrEP, and the order below was upheld. Costs followed the event.
2. The public-health exception in section 1H(2) of the National Health Service Act 2006 is a genuine exclusion from NHS England’s ordinary responsibility. Green J was wrong to construe it merely as identifying a concurrent partner. The phrase that services “are provided” in pursuance of public-health functions is normative, not dependent on whether a service is actually being provided at the time. Section 7A supplies a route by which the Secretary of State may arrange for NHS England to exercise public-health functions.
3. The boundary cannot be drawn simply between prevention and treatment. The relevant regulations are a legitimate guide to the scope of the primary legislation, consistently with Hanlon v Law Society [1981] A.C. 124. Regulation 11 and Schedule 4 paragraph 17 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 require NHS England to arrange adult specialist HIV services. On the majority reasoning, that category includes PrEP. PrEP and PEP form a seamless specialist continuum, and the treatment is intended to operate when infection occurs. Assigning them to different bodies would fragment responsibility.
4. NHS England is empowered, but not obliged, to commission PrEP. It remains for NHS England to determine whether its provision is a reasonable requirement as part of the health service under regulation 11.
5. Longmore LJ also considered that section 2 of the National Health Service Act 2006 would authorise PrEP as something facilitating or conducive to NHS England’s established HIV-treatment function. Underhill LJ reserved his view on that expansive alternative basis, while King LJ regarded section 2 and section 7A as alternative routes if the regulations did not themselves suffice.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 1100, the appeal by NHS England was dismissed.
• High Court, Queen’s Bench Division, Administrative Court: Green J held in [2016] EWHC 2005 (Admin) that NHS England had power to commission PrEP.