National Aids Trust v National Health Service Commissioning Board (nhs England) The Secretary of State for Health and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 02 August 2016 |
| Neutral Citation | [2016] EWHC 2005 (Admin) |
| Docket Number | Case No: CO/2979/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 August 2016 |
[2016] EWHC 2005 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/2979/2016
and
and
Karon Monaghan QC and Zoe Leventhal (instructed by Deighton Pierce Glynn) for the Claimant
Jonathan Swift QC (instructed by DAC Beachcroft LLP) for the Defendant
Nicola Greaney (instructed by Local Government Association) for the Interested party
Hearing date: 13 th July 2016
Judgment Approved
A. Introduction, summary and conclusion
This Claim is brought by a charity which specialises in achieving the best policy for treatment and prevention of HIV and AIDS, the National Aids Trust ("NAT"). The challenge is to a decision of the Defendant, NHS England, to refuse 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 treatment is known as "PrEP". The charity argues that both medically and economically the case for NHS England to commission the drugs for this prophylactic treatment is overwhelming and indeed there has been no suggestion from NHS England that this is not the case. A quick comparison of the cost of treating HIV related infections across a person's lifetime, compared to the relative cost of providing drugs on a prophylactic basis, shows that the savings from PrEP may be considerable. In these budgetary constrained times, when there is an ever increased focus on preventative medicine as a means of curbing future costs, the policy logic appears unassailable and, once again, it is said that there is no serious demur to this proposition from NHS England.
NHS England argues that the reason why it has decided not to commission PrEP on a preventative basis is very simple: It has no legal power to do so under the governing legislation, the National Health Service Act 2006 ("NHSA 2006"). It is argued that under the relevant legislation it does not possess a power to perform " public health functions" that are carried out by the Secretary of State or local authorities pursuant to their respective statutory powers and duties. Further, pursuant to regulations promulgated by the Secretary of State there is now a division of labour between NHS England and local authorities with the latter assuming responsibility for preventative medicine in relation to sexually transmitted diseases. Accordingly since the proposed commissioning of PrEP is squarely for preventative medicine in the field of sexually transmitted diseases this is now the sole task of the local authorities (or the Secretary of State) but not NHS England.
The local authorities disagree. They are represented in this litigation by the Local Government Association ("LGA"). They have argued that not only do they consider that NHS England is wrong in law but that (a) the consequences (if NHS England is correct) are illogical and inefficient because NHS England will then have responsibility for dealing with the greatest portion of the HIV/AIDs policy which includes treatments identical or extremely closely related to PrEP but will leave it to the local authorities to deal with the tail end and (b) the local authorities have no money and no budget for such preventative health in this field in any event.
At its core this judicial review is about the allocation of budgetary responsibility in the health field. 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.
Notwithstanding any and all of the above the issue for the Court is a narrow one – is NHS England correct in its analysis of its powers and duties? If it is then the wider policy and budgetary issues which arise are for the Secretary of State and Parliament to sort out.
In my judgment the answer to this conundrum is that NHS England has erred in deciding that it has no power or duty to commission the preventative drugs in issue. In my judgment it has a broad preventative role (including in relation to HIV) and commensurate powers and duties. But I have also considered the position if I am wrong in this. On this alternative hypothesis I am of the view that NHS England has still erred in concluding that it has no power to commission the PrEP drugs in question. Either: (i) it has mischaracterised the PrEP treatment as preventative when in law it is capable of amounting to treatment for a person with infection or (ii), NHS England has in any event the power under the legislation to commission preventative treatments (and therefore falls within its powers however that power is defined); because it facilitates and/or is conducive and/or incidental to the discharge of its broader statutory functions.
Before addressing the issues in detail I should express my gratitude to all counsel for the conspicuous clarity with which they analysed the complex issues arising in their written submissions and in the manner in which they delivered their oral arguments.
B. The parties
The National Aids Trust: NAT is a registered charity and a company limited by guarantee. The objects of the charity, as set out in its Memorandum and Articles of Association, are to promote public health through effective HIV prevention and early diagnosis of HIV infection. It includes the purpose of promoting the rights, dignity, health and well-being of people affected by HIV or at risk of infection in the UK and to advance the education of the public in general, including policy makers, opinion formers and decision makers, in order to increase awareness and understanding of HIV and AIDS and to eradicate HIV-related stigma, discrimination and equality.
NAT aims to deliver these charitable objects through a series of strategic goals. First, by seeking effective HIV prevention in order to halt the spread of HIV. Second, through secure early diagnosis of HIV to ethical, accessible and appropriate testing. Third, to secure equitable access to treatment, care and support for people living with HIV. Fourth, to enhance understanding of the facts relating to HIV and the issues surrounding living with HIV. Fifth, to eradicate HIV-related stigma and discrimination. NAT is a small charity with only 15 members of staff. Its activities are overseen by the Board of Trustees who are the directors and members of the company. The Board of Trustees includes, amongst its number, prominent HIV clinicians and academics.
The Secretary of State for Health: Proceedings in this claim were served on the Secretary of State for Health. The Secretary of State for Health has written to the Court indicating that he does not intend to file an Acknowledgement of Service nor make submissions in the proceedings. He has explained that he intends to remain " neutral" in the dispute. However the position of the Secretary of State is important in understanding the issues arising, not least because the Secretary of State provides to NHS England an "annual mandate" ("the Mandate") setting out the objectives which NHS England is required to pursue. The Mandate has a statutory function and is described in the following way in the 2016/17 document: " NHS England is responsible for arranging the provision of health services in England. The mandate to NHS England sets the Government's objectives and any requirements for NHS England, as well as its budget. In doing so, the mandate sets direction for the NHS, and helps ensure the NHS is accountable to Parliament and the public. Every year, the Secretary of State must publish a mandate to ensure that NHS England's objectives remain up to date". The Mandate is promulgated in accordance with section 13A(1) of the NHSA 2006, as amended by the Health and Social Care Act 2012.
The Mandate for 2016/17 requires NHS England to continue to sustain a comprehensive National Health Service in England of high quality and free of charge to everyone at the point of use. The Mandate sets out specific objectives for NHS England to pursue. Objective 4 emphasises the importance of preventative medicine:
" OBJECTIVE 4: To lead a step change in the NHS in preventing ill health and supporting people to live healthier lives.
2.8. The escalating demands of ill health driven by our lifestyles also threaten the long-term sustainability of the NHS. Across the health and care system, we want the NHS to do more to tackle smoking, alcohol and physical inactivity. We fully support the focus in the Five Year Forward View on preventing avoidable ill health and premature mortality. We ask NHS England to lead a step-change in the NHS on helping people to live healthier lives by tackling obesity and preventable illness. In particular, this includes contributing to the Government's goal to reduce child obesity and doing more to reach the five million people at high risk of diabetes and improve the management and care of people with diabetes. As part of the Prime Minister's 2020 Dementia Challenge, we expect NHS England to make measurable improvement in the quality of care and support for people with dementia and to increase public awareness."
The total budget for 2016/17 for NHS England is circa £107bn. It...
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