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The Court of Appeal on Thursday 10th November upheld the judgment of the Administrative Court and dismissed the appeal of NHS England in R (National AIDS Trust) v NHS Commissioning Board (NHS England), which concerned the NHS’s power to fund the “preventative” AIDS drug “PrEP” for persons at high risk of HIV exposure and infection.

The Court of Appeal rejected NHS England’s arguments that because PrEP was a “preventative” treatment and public health intervention, the power to authorise (and pay for) its provision lay only with local authorities, not with the NHS.   The Court of Appeal therefore held that NHS England had erred in law in refusing to consider funding it.  The Court of Appeal’s judgment is of considerable legal importance in drawing the dividing line between the responsibilities of the NHS, the Secretary of State, and local authorities in relation to public health and preventative treatments, and settles the high profile controversy as to the NHS’s ability to fund such health interventions for high risk and vulnerable groups.

Javan Herberg QC acted for the successful Respondent, the National Aids Trust.


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