The legal battle between NHS England and the National AIDS Trust over who should fund pre-exposure prophylaxis (PrEP) has raised a host of issues that extend far beyond the central topic ruled on last week in the Royal Courts of Justice.
The argument played out in court largely focused on money, legal powers and statutory responsibilities. The judge, Mr Justice Green, had to consider who should fund PrEP, whether NHS England has the legal authority to perform public health functions, whether local authorities are responsible for preventive aspects of sexual health. He came down in favour of NAT, ruling that NHS England has both the power and responsibility to take on a preventive role and commission preventive treatments such as PrEP.
The judge acknowledged that the core argument presented to the court was essentially about whether PrEP should be paid out of one pot of government money or another. While both NHS England and local authorities say they have no money to fund PrEP that was not an issue for the court but for the secretary of state and parliament to address.
”The ruling raised wider issues that suggest NHS England’s decision to appeal isn’t just an attempt to wriggle out of paying for PrEP”
However, the ruling raised wider issues that suggest NHS England’s decision to appeal isn’t just an attempt to wriggle out of paying for PrEP – indeed even though it lost the ruling it is not mandated to pay for PrEP, but must simply consider its cost-effectiveness as a preventive treatment.
Commentators were quick to broaden the discussion on PrEP to raise more moral and philosophical questions, such as:
- Should the NHS fund a ‘lifestyle’ drug – particularly when condoms offer protection against HIV?
- Will PrEP simply be seen as a licence to engage in unprotected sex?
- Should people engaging in high-risk sexual activity be funded at the expense of other groups?
These are all valid questions, but I wonder whether the case would have made such a splash in the media if it hadn’t focused on a relatively small group of sexually active gay men who don’t use condoms? The possibility that heterosexual people may also indulge in this behaviour was conveniently ignored. Most discussions managed to skirt around overt homophobia, but in some cases it was a close call, relying on juxtaposing this group against a range of others and leaving people to draw their own conclusions about which were most deserving.
”I wonder whether the case would have made such a splash in the media if it hadn’t focused on a relatively small group of sexually active gay men who don’t use condoms?”
The unspoken implication was that a group of people unwilling to take responsibility for their own health were being prioritised over a number of ‘innocent’ groups who would be competing for the same pool of money. Most reports picked up on a reference by NHS England to children with cystic fibrosis, as well as certain groups of cancer patients – all likely to generate more sympathy among much of the population.
Of course many people will see this as a no-brainer on moral principles. The NHS should not pay to treat people who can’t be bothered to modify their behaviour; its responsibility should be to people with conditions they can’t be ‘blamed’ for.
But such a decision could have far-reaching implications – the issue of blame could then be extended incrementally to include far more groups. And it could also extend from preventative treatments to include those that manage or cure conditions.
If the principle was extended to restrict funding for other preventive or curative treatments it would probably be other demonised groups such as smokers, drinkers, drug users and obese people at the head of the queue.
”To paraphrase Martin Niemöller, first they came for the smokers and I did not speak out, because I was not a smoker”
But how about those who develop long-term conditions due to inactivity or poor diet? Or people who sustain injuries when doing something that was blatantly stupid? To paraphrase Martin Niemöller, first they came for the smokers and I did not speak out, because I was not a smoker.
Arguments around what the NHS should fund resurface regularly – usually in relation to a demonised group. But they are usually restricted to a particular issue relating to a particular group.
Maybe we do need a broader debate on how to allocate finite funds when needs are infinite. But we need to remove notions of guilt or innocence from that debate and focus on core principles. And perhaps we should also put financial considerations in the pot. How about NHS funding being a guaranteed proportion of GDP to ensure that any changes aren’t used as a mechanism for cutting government spending on healthcare? And what about tackling the thorny issue of pharmaceutical licensing and pricing, to stop companies filing multiple patents to prevent the sale of cheaper generic drugs for years beyond the original patent expires?
”Healthcare funding is an ethical issue”
Healthcare funding is an ethical issue, and it’s fair enough to take a look at it through the prism of ethical frameworks, but if we allow it to be a moral issue, funding may ultimately depend on whether your face fits with those making the decision.