NHS England had no legal basis to delay PrEP: Court of Appeal upholds judgement

PrEP scales

Simon Collins, HIV i-Base

On 10th November 2016, a decision in the UK Court of Appeal showed that earlier attempts by NHS England to avoid the process of evaluating PrEP had no legal basis. [1]

The legal challenge had been brought by the National AIDS Trust (NAT) after NHS England attempted to derail its own evaluation process in February which delayed access the PrEP by almost a year. [2]

The opportunity to defer providing PrEP was likely to be a delaying strategy as the patent for the individual drugs used for PrEP run out in 2017. In this way, NHS England has squeezed the likely period that it pays for full price PrEP to a minimum. Over this time more than 5000 people are likely to have been diagnosed HIV positive [3], perpetuating a health crisis that is especially high in gay men and transgender people. [4]

Also over this time, community responses to the lack of access to one of the most effective proven protections against HIV included a growing information network that has enabled people to access high quality but low-cost generic versions of the same medicines. [5]

Even though an evidence review from NICE published a month earlier report high efficacy of PrEP in the UK [6], the press statement from NHS England continues to stress that the court decision supporting the ability of the NHS to provide PrEP does not guarantee it will do so. [6]

Even in this latest short statement, one of the four paragraphs makes little sense:

[The judgement]… “overturns the High Court in helpfully clarifying that Parliament did not intend that the NHS was expected to fund local authorities’ public health responsibilities just because they have not done so.”


This court decision, together with the NICE review, makes it increasingly likely that NHS England will have to provide some level of PrEP for people at high risk. Even if PrEP is approved, then as with new hepatitis C treatment, access is likely to be limited and capped.

Since PrEP was approved in the US in 2012, more than 30,000 people are likely to have been diagnosed with HIV in the UK.


  1. NAT press release. Final PrEP HIV drug case win for National AIDS Trust at Court of Appeal. (11 November 2016).
  2. NHS England. Update on commissioning and provision of Pre Exposure Prophylaxsis (PREP) for HIV prevention. (21 March 2016).
  3. Public Health England. HIV diagnoses, late diagnoses and numbers accessing treatment and care. HIV official statistics overview: 2016. PHE publications gateway number: 2016349.
  4. NHS England pulls proposed timeline for PrEP: perpetuates HIV health crisis in gay men and trans people. HIV Treatment Bulletin, March 2016.
  5. Wang X et al. InterPrEP: internet-based pre-exposure prophylaxis (PrEP) with generic tenofovir DF/emtricitabine (TDF/FTC) in London analysis of pharmacokinetics, safety and outcomes. Oral abstract O315.
  6. NICE. Pre-exposure prophylaxis of HIV in adults at high risk: Truvada (emtricitabine/tenofovir disoproxil). Evidence summary: new medicine (ESNM78), October 2016.
  7. NHS England. Update on PrEP. (11 November 2016).

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