National Aids Trust v National Health Service Commissioning Board (NHS England) (Rev 1)

NHS England’s statutory commissioning powers include preventative medicine, including preventative HIV treatment. The exception in section 1H(2) of the National Health Service Act 2006 concerns the identity of the body exercising concurrent public-health functions, not the scope of NHS England’s primary duty. The 2012 Regulations also confer power to commission preventative HIV treatment. In any event, PrEP is sufficiently analogous to PEP to constitute treatment for a person who may pragmatically be assumed to be infected, or it is calculated to facilitate, conducive to, or incidental to NHS England’s functions under section 2. NHS England therefore erred in law by concluding that it lacked power to commission PrEP.

The claimant charity sought judicial review of NHS England’s decision not to consider commissioning pre-exposure prophylaxis using antiretroviral drugs for people at high risk of contracting HIV. NHS England contended that the statutory allocation of public-health functions placed preventative sexually transmitted infection services with local authorities or the Secretary of State, and that its own commissioning powers were limited to treatment of persons already infected.

The Secretary of State remained neutral. The Local Government Association supported the claim and emphasised the funding and service consequences of NHS England’s interpretation. The central issue was whether NHS England had statutory power to commission PrEP.

1. Construction of section 1H(2). The exception to NHS England’s concurrent duty under the National Health Service Act 2006 concerns concurrency and the identity of the other public body, rather than removing preventative medicine from NHS England’s statutory duty. Treating the exception as excluding all public-health functions would substantially eliminate NHS England’s duty and produce an absurd and illogical result.
2. Scope of the statutory scheme. The Act imposes broad, comprehensive and concurrent duties covering improvement of health and prevention, diagnosis and treatment of illness. It also requires efficient, integrated provision and reduction of inequalities. Budgetary consequences could not determine the prior question of statutory power, although resources remain relevant when NHS England exercises its discretion.
3. 2012 Regulations. The definitions of health-care services and treatment include prevention. Regulation 11 and paragraph 17 of Schedule 4 therefore require NHS England to arrange adult specialist HIV services, including preventative treatment. The 2013 Regulations impose duties on local authorities but do not curtail the separate duty imposed on NHS England.
4. PrEP and PEP. Both are prophylactic antiretroviral treatments given to persons at high risk of HIV infection. Their patient groups overlap, their microbiological operation is materially similar, and the difference in timing does not justify treating them differently. For statutory purposes, infection may be assessed by pragmatic clinical judgment rather than scientific certainty. Patients receiving PEP may therefore be assumed to be infected, and PrEP is, by parity of reasoning, capable of being treated in the same way.
5. General power. Section 2 contains an express general power. Its scope is determined by its language, not by the narrower necessity-based principles applicable where legislation is silent. PrEP is calculated to facilitate, conducive to, and incidental to NHS England’s functions.
6. The claim succeeded. NHS England’s decision was set aside. The court reserved submissions on the terms of any declaration and consequential steps.

First-instance judicial review in the High Court (Administrative Court). The judgment does not state a prior appellate decision in this litigation.