NAT legal challenge forces NHS England to reopen process for PrEP: 45-day public consultation now online

Simon Collins, HIV i-Base

On 2 August 2016, a legal challenge was successful in achieving a judgement that forced NHS England to reopen the process to commission PrEP. [1]

The legal action was taken by National AIDS Trust (NAT) – a community HIV policy campaign group – in response to a decision by NHS England in March 2016 to abandon an 18 month prespecific process for PrEP to be evaluated for use by the NHS. [2]

Deborah Gold, Chief Executive of NAT, said: “This is fantastic news. It is vindication for the many people who were let down when NHS England absolved itself of responsibility for PrEP. The judgment has confirmed our view – that it is perfectly lawful for NHS England to commission PrEP. Now NHS England must do just that. Over 4,000 people are getting HIV every year in the UK – we desperately need further prevention options to add to condom use. PrEP works. It saves money and it will make an enormous difference to the lives of men and women across the country who are at risk of acquiring HIV. The delay to commissioning PrEP is both unethical and expensive.”

In his judgement Mr Justice Green wrote: “No one doubts that preventative medicine makes powerful sense. But one governmental body says it has no power to provide the service and the local authorities say that they have no money. The Claimant is caught between the two and the potential victims of this disagreement are those who will contract HIV/AIDS but who would not were the preventative policy to be fully implemented.” He went on to conclude that NHS England does have the power to commission PrEP.

Unfortunately, but not unpredictably, NHS England has announced that they will appeal the decision, in an attempt to further extend a bureaucratic delay for access to one of the most effective options to protect against HIV.

NHS England is criticised for online response to court judgement

An announcement on the NHS website [3] was quickly and widely criticised for pitting one patient group against another. [4, 5]

Firstly the announcement started with a factually incorrect and incomplete statement in bold that “PrEP is a measure to prevent HIV transmission, particularly for men who have high risk condomless sex with multiple male partners.” Secondly it went to great lengths to stress that any decision to fund PrEP would results in restricted or blocked access to new drugs for other indications. Thirdly it referred to an esstimated budget of £20 million while noting in other places that financial costs were linked to a different part of the commissioning process.

The weekly newsletter from the Patients Association criticised the statement for implying “that other services would have to be sacrificed in order to fund PrEP”. Katherine Murphy, Chief Executive of the Patients Association said: “We are deeply concerned about this divisive narrative around PrEP, care for HIV positive patients, and commissioning structures within the NHS. It is important to note that NHS England’s highest cost estimate for PrEP is £20m a year.”

“Two points are worth making to provide a vitally needed perspective. Firstly, this constitutes 0.02% of NHS England’s annual budget. Secondly, this figure is insignificant compared with the £483m that NHS England were spending on HIV treatment in 2013. This is not to suggest that PrEP would negate the need for HIV treatment but ‘prevention-is-better-than-cure’ has long been a guiding principle for NHS commissioning; it is not entirely clear why this logic is not being employed for the care of patients with HIV.” The article continued: “To pit one patient against another patient is unacceptable and compromises the reputation and core values of the NHS.” [4]


NHS England should clearly accept responsibility for this mess and not try to shuffle it back on to people who are quite reasonably expecting services appropriate for their health.

The 45-day public consultation on PrEP was published online on 10 August 2016. [5]


  1. NAT. Historic win for NAT as the High Court overturns NHS England refusal to consider PrEP. (2 August 2016).
  2. NHS decision not to fund PrEP. (21 March 2016).
  3. NHS England. August update on the commissioning and provision of Pre Exposure Prophylaxis (PREP) for HIV prevention. (2 August 2016).
  4. Patients Association Weekly Newsletter, August 2016.
  5. Consultation on Specialised Services clinical commissioning policies and service specifications. (10 August 2016).

Links to other websites are current at date of posting but not maintained.