By Sharifah Sekalala
This week was a momentous week in the continuing fight against AIDS in the UK. The National Aids Trust vs NHS England opens the way to providing preventive treatment for men who have sex with men (MSM) and sex workers at risk of HIV infection in England. The World Health Organization recommends that all MSM and people at high risk of HIV infection should receive pre-exposure prophylaxis (PrEP), but NHS England had argued that this should be funded by individual local authorities. However, Lord Justice Green on Friday 5 August rejected this argument, saying that there was nothing in the provision of the law that meant that local authorities alone should pay. While this judgement has been welcomed by charities working this area, it hasn’t been without contention illustrating the underlying issues of discrimination that surround this case.
In this blog, I argue that MSM and sex workers, who form the majority of those needing PrEP, are an already-discriminated-against minority that needs prioritisation in public health. The struggle against AIDS has always involved fighting for minority rights.
In his judgement, Justice Green made two important points. First, he rejected the argument that the new regulations in 2012 that gave local authorities the duty to administer preventive treatment superseded the duty of NHS England under the 2006 Act. Second, he said that PrEP could be described as both preventive and curative, and therefore should be considered similar to other treatment options for AIDS that are currently offered by NHS England. While the judge recognised that treatment for PrEP was expensive, he reasoned that the subsequent average cost of £360,000 (USD 471,000) to NHS England for anyone contracting AIDS made it economically sensible to invest in a preventive approach. He was particularly concerned that if NHS England did not have the duty to provide treatment then this would create massive inequality, since different councils would make decisions independently, leading to a postcode lottery for gay men.
Justice Green was careful to restrict his ruling to the narrow clarification of whether a legal challenge would be successful. In so doing, he acknowledged that there may be other health outcomes which NHS England may choose to prioritise despite his judgement. NHS England has announced that it intends to appeal the judgement, saying that if it funds PrEP then other groups would lose out, such as children with cystic fibrosis, amputees needing prosthetic knees, and those requiring treatment for rare cancers. Many commentators were dismayed by the fact that an already overburdened NHS now potentially faces extra costs due to what they perceive as the ‘irresponsible behaviour’ of gay men.
The judgement and its resulting criticism have raised two questions about the rationing of prevention and treatment medicine. First, should health providers prioritise preventive treatment for people who are engaging in at risk behavior? Second, should human rights contribute to the debate of which treatments get funded?
I argue that NHS England should offer PrEP, because the two high-risk groups in this case (MSM and sex workers) are inherently vulnerable. Gay people and sex workers not only face historic legal discrimination but are particularly vulnerable to contracting HIV/AIDS, and a human rights approach demands that we consider this funding as one of the way in which we can address this structural inequality.
In 2014, in the UK, 2800 MSM contracted HIV (approximately eight men per day). Despite the change in the law in 2013 to allow gay marriage, there is still a lot of homophobia. For example, some media coverage of the PrEP struggle, portrayed homosexuals as being irresponsible in opting for a “party drug” that absolves them from blame while transferring the cost to the public health system. These are unhelpful narratives that are not used against other populations that may similarly be practising unsafe sex.
Sex workers are also often stigmatised and marginalised. Although it is not illegal to be a sex worker in the UK, a number of associated practices, such as kerb crawling, soliciting in a public place, pandering and owning or operating brothels all still remain illegal. Furthermore, many sex workers use drugs as a coping mechanism, and due to the precarious nature of their work they are particularly prone to violence, which makes it harder to negotiate safe sex. All these combined factors mean that sex workers are 14 times more likely to acquire AIDS than non-sex workers.
It is evident that both MSM and sex workers are disadvantaged and need some sort of reparation from society due to their vulnerability.
NHS England already funds various interventions for heterosexual couples and has accepted that women should have the autonomy to make decisions about their bodies. Accordingly, they have access to NHS funded sexual health services. There is also acknowledgment that a public health approach that relies on condom use is not fool proof, as they sometimes tear, especially during anal sex. Furthermore, calling for MSM to always wear condoms ignores the complex power dynamics that are readily recognised in heterosexual relationships; that is, partners in intimate relationships cannot always be relied on to use protection.
Preventive health options like PrEP always require health promotion and education; frequently these health promotion campaigns lead to greater engagement of vulnerable groups with health workers, which leads to better health outcomes. The UK has already seen the success of this in its bid to reduce teenage pregnancies. Claire Murphy, the head of the British Pregnancy Association, credited this fall to continued access to sex education and contraception.
Removal of the distinction between preventive and curative is important in this judgment. Although it is generally accepted that the NHS cannot fund all health requirements, it already funds very expensive treatments which are not curative but life prolonging, without much criticism from the general public. For example, in June this year, the UK National Institute for Health Care and Excellence (NICE) approved the immunotherapy drugs nivolumab (with ipilimumab) at a cost of £127,000 (USD 166,000) per person every year, and this was hailed as a welcome decision that would enhance the quality of life of cancer sufferers.
Furthermore, the NHS already funds three different types of HIV preventive treatment: mother to child transmission, couples who are sero-discordant (one person is HIV positive and the other is not), and post-exposure prophylaxis, where individuals who have been clinically assessed as having been exposed to HIV 72 hours previously are treated preventively for 28 days. So it seems that any attempt to exclude MSM or sex workers from preventive and treatment options would reinforce historic discrimination.
As human rights, and the right to health, are based on premises of equality and non-discrimination, the decision from Justice Green is in keeping with the rights of MSM and sex workers to have equal access to the highest attainable standard of health, and not to be discriminated against by the NHS.
Sharifah Sekalala, PhD, is a Research Fellow in the School of Law at the University of Warwick (UK). Her research focuses on the role of law in responding to global health problems.