What could happen if community pharmacy wins its challenge against the cuts?


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24 Mar 2017

The Pharmacist spoke to solicitor Andrea James, who lead the NPA’s legal challenge to the cuts, to find out.

This week marked an unprecedented event for the sector when community pharmacy organisations took their fight to overturn Government-imposed funding cuts to the courts.

In a three-day judicial review at the High Court (21-23 March), lawyers acting on behalf The Pharmaceutical Services Negotiating Committee (PSNC) and the National Pharmacy Association (NPA) took the Government to task on its decision to slash the English community pharmacy budget by £320m.

In what proved to be an extraordinary hearing, it was revealed that Chancellor of the Exchequer Phillip Hammond wrote to Prime Minister Theresa May in August last year expressing his opinion that pharmacy funding was ‘too high’ and ‘inefficient’.

The Government’s barrister, James Eadie, also drew censure from the sector when he referred to pharmacy’s retail offering by pointing out that some pharmacies sell sandwiches.

The Pharmacist contacted the DH for comment, but had not received a response at the time of going to press.

The Judge presiding over the hearing is expected to reach a decision during the week commencing 3 April.

But what would actually happen if the PSNC or the NPA are successful in their cases?

The Pharmacist spoke to partner at Knights Professional Services Limited, Andrea James – who lead the legal team acting on behalf of the NPA since December 2015 and instructed the organisation’s barrister in the case – to find out.

Could you hazard a guess as to what would happen if the NPA wins its case?

‘The short answer is that the Judge has a very wide discretion to give whatever relief or remedy he sees appropriate. So the Judge could, for example, overturn the cuts and direct the Department of Health to revert to the pre-December 2016 position, or he could make a wide variety of other orders.

‘Really, in the first instance, we’ll have to wait and see whether the Judge finds in favour of either of the Claimants’ arguments in the case and I think remedy, because remedy here will be complex, could then be another phase for us to manage.’

So whatever happens, it’s going to be a long and complicated process still? It’s not over?

‘I wouldn’t say long. The Judge has said that he hopes to give Judgment during the week commencing 3 April 2017, and what he might do, if finding for either Claimant, is that he might say, “I’ll take written submissions on remedy and you’ve got 14 days to file those submissions”.

‘So I don’t think this is going to go on for months and months, but it’s difficult to speculate on what the overall outcome might be even if the NPA or the PSNC win their cases. It’s also possible the Judge could determine the remedy at the same time as giving Judgment. The Court really has a very wide discretion.’

Were you happy with how the hearing went?

‘We’re pleased. The Judge had clearly spent a long time reading the papers in advance of the hearing, he was very familiar with the issues and he gave all parties a fair hearing. He gave us ample opportunity to make our submissions on behalf of the NPA, he was highly attentive and he fully engaged with all the arguments we sought to make.

‘So we’re very grateful from that perspective. We’re also pleased that all the points that the NPA wanted us to make on behalf of their members were aired in full. So we’re happy from that perspective, too.’

What do you think some of the revelations in the case tell us about the way that the Government sees community pharmacy?

‘I find it quite concerning that people who appear to have no idea about what community pharmacists do are making huge decisions about the future of [the sector]. I also found it concerning to note that both Phillip Hammond and Jeremy Hunt gave Theresa May entirely incorrect information about the funding paid to pharmacists and, from the correspondence we’ve obtained as part of disclosure in the case, that incorrect information was never corrected even after a Department of Health official wrote to Hammond and Hunt pointing out their misunderstandings.

‘That, to my mind, demonstrates a lack of integrity. I have also found the lack of respect for the broad primary healthcare service delivered by community pharmacists quite troubling. One of the more odd points made by the Government’s barrister during the hearing is that pharmacies “sell sandwiches” and the pharmacist “lurks at the back”.

‘That was hugely disrespectful, apart from irrelevant to the legal arguments under consideration. Overall, I fail to understand how anyone could be tasked with responsibility for a hugely important system such as the community pharmacy network and yet fail to understand how that system actually works and what the professionals running it do on a daily basis.’

For a breakdown of the hearing as it happened, click the links below.

Day one

Day two

Day three

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