A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
How much is a life worth? It’s a question long pondered by scholars and ethicists but for policy-makers and politicians it’s a tough, perhaps unenviable, question that needs answering on an all too frequent basis.
Reading the media today, you could be forgiven for thinking that NHS England has come to the conclusion that gay men’s lives matter less. Men who have sex with men would be the biggest benefactor of PrEP becoming available on the NHS. THT describe Pre-exposure prophylaxis (PrEP) as a course of HIV drugs taken before sex to reduce the risk of getting HIV.
The NHS statement on its latest decision is far from clear to the average reader and so it’s inevitable that the response from HIV charities is a chorus of criticism for the NHS making the wrong decision. In fact, NHS England have decided that they are not going to make a decision. A triumph of administrative absurdity.
NHS England argue that it’s not them who are responsible for commissioning HIV prevention services. The Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 put the responsibility on local services via section 6 of the Act. So, technically, they are right as this is about prevention rather than treatment.
The statement from NHS England then goes on to state that is they decided to consider PrEP as part of the Clinical Priorities Advisory Group (CPAG) prioritisation process, they might face a legal challenge from groups that provide services that could be displaced. This translates as the NHS worrying that charity groups that might provide services commissioned by local authorities on sexual health may have their funding withdrawn (i.e those local groups that provide drop in and support services, HIV testing and free condoms) and they wouldn’t like it. The argument therefore is that groups that are tasked with saving the lives of men who have sex with men (and others) would be so concerned that a better prevention method was being made available, that they would launch a costly legal action. It’s a fascinating argument, particularly when many such groups are actually arguing for the provision of PrEP. It is telling that NHS England cite no evidence in their statement to support their fear of potential legal action. Moreover, and let’s be clear, if a sexual health service became more interested in protecting their own jobs, than ensuring the most effective public health service was made available, they should get out of the business of public health.
Despite this, NHS England throws – or attempts to throw – some crumbs of comfort. They state that they will be making available up to £2m over the next two years to run a number of early implementer test sites. Yes, more tests. Yet these tests are not about the effectiveness of PrEP. NHS England accepts the evidence shows PrEP works. These further pilots are about costs. They write: ‘These will run over the next two years and will aim to test the ‘real life’ cost effectiveness and affordability of PrEP as part of an integrated HIV and STI prevention service.’
The commissioning point is misleading. On that, they don’t have the legal capacity to make a decision but they do have the power to refer PrEP to the CPAG Prioritisation Process, and that process would surely then prioritise PrEP (which local authorities who do commission services would then follow as they make decisions about who to commissions services from). But even this administrative and legal argument is misleading. The one decision that NHS England have made reveals the real thinking here; it’s all about the money.
So, how much is a life worth? NHS England is saying it needs another couple of years to figure it out.