NHS England had power and duty to consider commissioning anti-retroviral drug that reduced risk of contracting AIDS


Re: National Aids Trust v National Health Service Commissioning Board (NHS England) [2016] EWHC 2005 (Admin)

The claimant charity challenged the refusal of the defendant to consider in its commissioning process an anti-retroviral drug to be used on a preventative basis for those at high risk of contracting AIDS.

The defendant argued that it lacked the power to commission the drug, as the National Health Service Act 2006, s 1(H)(2) excepted it from performing ‘public health functions’, which were instead within the remit of the Secretary of State or local authorities. The court opted for a purposive interpretation of the provision, and concluded that the exception did not apply to the duties of the defendant, but rather is concerned with exceptions to the identity of its concurrent partner in performing these duties.

The defendant further asserted that local authorities were responsible for preventative medicine where sexually transmitted diseases were concerned, pursuant to the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013. It argued that the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 made the defendant responsible for those who were actually infected with HIV, and therefore precluded the defendant’s involvement in preventative treatment. The court rejected this argument for a number of reasons, including the fact that such an interpretation was inconsistent with the 2006 Act when read as a whole. In addition, it found that while the 2013 Regulations placed a duty on the local authorities to provide preventative services, it did not affect the scope of the defendant’s duty under the 2012 Regulations.

Even if the court had erred in interpreting the above legislative provisions, it found that the defendant had mischaracterised the drug treatment as preventative, as it was also possible that the drug could also be provided to patients presumed to be already infected. Alternatively, it held that the defendant had legislative power to commission preventative treatment, as this was conducive and/or incidental to discharging its broader statutory functions.

Application for judicial review successful.

Karon Monaghan QC was involved in this case.