Judicial review as it happened: Day 3


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24 Mar 2017

Day 3 – 23 March 2017

The National Pharmacy Association (NPA) has added its weight to the legal attack on government plans to slash £320m off the community pharmacy budget.

The body’s barrister, David Lock QC, said that disabled people and ethnic minorities living in deprived areas will be hardest hit by the cuts – which could see the closure of up to a quarter of the country’s 11,600 small pharmacies.

‘Irrational’ to approve cuts

Arguing the NPA’s case at the High Court, Mr Lock said it was simply ‘irrational’ for Health Secretary, Jeremy Hunt, to approve the cuts while at the same time contending that it was impossible to predict the number of pharmacy closures.

And he claimed that Mr Hunt took inadequate account of the impact on the elderly, infirm and minority ethnic groups that have ‘protected characteristics’ under the Equality Act.

The reality was that Department of Health (DH) officials had ‘given commitments’ to the Treasury about reductions in NHS funding and that tied the Secretary of State’s hands, giving him ‘limited scope’ to reach a balanced decision, argued the QC.

He added: ‘These errors of law infect a decision which, as the Secretary of State has acknowledged, has the potential to result in the closure of as many as 3,000 pharmacies, approximately a quarter of the community pharmacy sector.

‘On any analysis, this is a profound impact. It is magnified by the fact …that the majority of pharmacies affected would be small, independent, businesses.’

Budget issues

Mr Lock acknowledged that Mr Hunt had to adopt budget priorities and that there was ‘nothing inevitably unlawful’ about cutting community pharmacy funding. But such a decision could only be made if he had a proper understanding of the likely consequences.

The barrister said it was ‘the essence’ of the NPA’s case that health ministers were informed by officials ‘that these cuts could be made without adverse impacts on NHS patients when that was patently not the case.’

‘They were given assurances not backed by proper assessments and thus took decisions based on those unjustified assurances,’ he added.

‘Ministers then failed in the duty to be clear about the effect of their decisions. The consequence was that the decisions were taken on an improper basis.’

Pharmacy closures

Attacking the ‘lack of transparency’ in the decision-making process, Mr Lock said the Department of Health had given a ‘best estimate’ in June last year that 1,177 community pharmacies would close as a result of the cuts.

Mr Lock said ‘health inequality’ – the marked difference between life expectancies and general health between affluent and deprived areas – was well documented.

Deprived neighbourhoods tend to have fewer GP surgeries and the reason why they attracted ‘clusters’ of pharmacies was because of the greater demand for their services, he added.

But there had been an ‘absence of acknowledgment’ by the Department of Health that those areas in greatest need would suffer most due to the cuts.

The changes to community pharmacy funding were announced by the Government in October last year. They are being challenged by the NPA and the Pharmaceutical Services Negotiating Committee (PSNC).

The Secretary of State, however, insists that his decision was lawful and is urging Mr Justice Collins not to intervene.

The hearing is now in its third day and the judge is expected to reserve his decision until a later date.

See here for a summary of day 1 and day 2 of the case.


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