Public health functions

August 2nd, 2016

National AIDS Trust v NHS England (2016) EWHC 2005 (Admin) is a challenge to a decision of 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. NHS England argued that it had no power to do so under the governing legislation, the National Health Service Act 2006.

It argued that it did not have power to perform “public health functions” that are carried out by local authorities or the SOS pursuant to their respective statutory powers and duties. NHS England further argued that, pursuant to 2013 Regulations promulgated by the SOS 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.

The local authorities disagreed. They were represented in the litigation by the LG A. At its core the judicial review was about the allocation of budgetary responsibility in the health field.

Green J concluded that NHS England had erred in law in deciding that it had no power or duty to commission the preventative drugs in issue. It has a broad preventative role and commensurate powers and duties. In any event preventative treatments facilitate and/or are conducive and/or are incidental to the discharge of its broader statutory functions. 

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