Pharmacy has had its day in court and the outcome, although not unexpected, is a devestating blow to the sector, the service, and its patients.
After two months of deliberation since the judicial review hearing on 21-23 March, the High Court has upheld the Government’s £320m cuts to English community pharmacy funding.
Mr Justice Collins, the judge presiding over the case, said he reached his decision ‘with some regret’, but that cuts in NHS funding were a matter for politicians, not judges.
[box type=”shadow” ] Sector reacts: Judicial review judgement
See the full sector reaction to the news from the High Court here.[/box]
The National Pharmacy Association (NPA) has said that the ‘unprecedented’ cuts over two years could see up to 3,000 pharmacies close.
The Department of Health (DH) has welcomed the judgement.
Meanwhile, the Pharmaceutical Services Negotiating Committee (PSNC) said it is ‘disappointed’ and the NPA has called the decision a ‘watershed moment’ for pharmacy policy after Mr Justice Collins criticised the DH’s handling of the cuts when handing down the judgement.
The NPA and the PSNC mounted a judicial challenge to the cuts, which have since been implemented, last year on the grounds that they were unlawful.
Mr Justice Collins agreed it was ‘regrettable’ that the DH failed to inform the PSNC of the statistical method it was using to estimate closure numbers.
But that was not ‘so unfair as to amount to unlawfulness’ and it was ruled that the outcome would in any case have been the same, he said.
Everyone acknowledged that the cuts would result in some closures – the Government originally estimated about 2,000 – and service reductions.
Health Secretary Jeremy Hunt recognised that the funding reductions were ‘unprecedented’.
And the judge had ‘no doubt’ that the DH considered a reduction in the number of pharmacies ‘desirable’.
But he added that the reductions in funding ‘were not made with that intention’.
‘The changes were to save cost and to implement the required savings that were dictated by the Government’, he told the court.
A reduction in ‘clusters’
Noting that 40% of pharmacies are within 10 minutes walk of two or more other pharmacies, the DH felt that such ‘clustering’ should be discouraged and that ‘significant efficiencies’ could be made in the sector.
The Chancellor of the Exchequer wrote to the Prime Minister in August 2016 ‘stating that the subsidy to community pharmacies was too high’.
Unreliable DH figures
The judge accepted that some of the figures used by the DH were unreliable and did not enable ‘a satisfactory analysis of the economic effect’ of the cuts.
The failure to fully disclose to the PSNC the statistical material that the DH was relying upon was also unfortunate.
But Mr Justice Collins added: ‘I do not think that their disclosure would have made any difference to the result.’
Reacting to the judgement, the NPA argued that the cuts would hit old and vulnerable people most and that the cuts flew in the face of the DH’s duty to maintain equal access for all to NHS services.
PSNC chief executive Sue Sharpe said: ‘Our lawyers and QC felt that we had a good case; and there are serious criticisms of the consultation process and of the Department of Health made in the judgment.
‘Unfortunately, the fact that the Secretary of State has very wide powers to decide what is relevant to his decisions, coupled with the Department withdrawing reliance on analysis they had undertaken means that we failed to establish that the inadequacies in the process were sufficient to make the process unlawful.’
In his judgement, Mr Justice Collins said: ‘I recognise that the evidence produced does indicate a real risk that there will be less access because of the inability to keep some pharmacies open for as many hours as at present and some services, such as free delivery, may have to cease.’
There was also concern that closures would increase the pressure on GP surgeries in deprived areas.
But it was ruled that the DH’s approach was not irrational despite ‘the difficulties and hardships that may well arise’.
Mr Justice Collins added: ‘Where cuts in remuneration are made some hardship is inevitable.
‘Cuts of the nature required will inevitably produce some hardships for individual pharmacies and for some who make use of them.
‘But that cannot mean that, in times of the need for some retrenchment, no cuts can be made.
‘I do not doubt that some criticism is properly made in that it is possible to think that different means might have been better.
‘But that is not for this court, since it is only if unreasonableness is establisehd that it is proper to intervene.’
The judge said there was ‘undoubtedly blame to be placed on the Department’ for its failure to share all its statistical material with the PSNC.
But he concluded: ‘I am bound to say that I have with some regret concluded that I cannot properly quash the decision.
‘It is equally unfortunate that the goodwill which existed between the PSNC and the Department has been lost.’
The DH declined to comment on Mr Justice Collins’ assessment that there was ‘undoubtedly blame to be placed on the Department’ for its failure to share all its statistical material with the PSNC.
It also did not respond to the judge’s pronouncement that ‘different means might have been better’ to avoid the ‘inevitable hardship’ to the public from the pharmacy cuts.
However, a DH spokesperson told The Pharmacist: ‘We are pleased that the judge has upheld the Government’s position on this case and we welcome this decision.’
The spokesperson added that they were unable to comment further at present ‘due to being in the pre-election period’.