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An AIDS charity has won a High Court battle over whether a preventative treatment for HIV can legally be funded by the NHS.

NHS England said it had received advice that it does not have the legal power to fund pre-exposure prophylaxis (PrEP), a 鈥渉ighly effective鈥� anti-retroviral drug used to stop HIV from becoming established in the event of transmission.

But Mr Justice Green ruled that NHS England 鈥渉as erred in deciding that it has no power or duty to commission the preventative drugs in issue鈥�.

The ruling was a victory for the National Aids Trust (NAT), which brought the case to court.

When taken consistently, PrEP has been shown to reduce the risk of HIV infection in people who are at high risk by more than 90 per cent. It contains two antiviral drugs, also given to people infected with HIV, which stop the virus multiplying.

Who is responsible?

A row erupted earlier this year after NHS England said it would not routinely fund the drug. In the US men and women in the US can already take the drug as a daily pill, under the trade name Truvada.

In March, the body decided the treatment was a preventative service and was therefore not its responsibility. It has said local councils are in charge of funding preventative health services.

However, NHS England agreed to a re-evaluation after the NAT launched a legal challenge.

Then in May it said it had 鈥渃onsidered and accepted NHS England鈥檚 external legal advice that it does not have the legal power to commission PrEP鈥�, and that under 2013 regulations 鈥渓ocal authorities are the responsible commissioner for HIV prevention services鈥�.

Allowing NAT鈥檚 application for judicial review, Mr Justice Green said on Tuesday the core of the legal challenge was about 鈥渢he allocation of budgetary responsibility in the health field鈥�.

He said: 鈥淣o one doubts that preventative medicine makes powerful sense. But one governmental body says it has no power to provide the service and local authorities say they have no money.

鈥淭he 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.

鈥淚n my judgment the answer to this conundrum is that NHS England has erred in deciding that it has no power to commission the preventative drugs in issue.鈥�

Alternatively, said the judge, NHS England has 鈥渕ischaracterised the PrEP treatment as preventative when in law it is capable of amounting to treatment for a person with infection鈥�.

In any event NHS England had power to commission preventative treatments because that facilitated, or was incidental to, 鈥渢he discharge of its broader statutory functions鈥�.

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