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Sector reacts: Judicial review judgement


18 May 2017

The sector has reacted to the news that Government cuts to English pharmacy funding are to remain in force, despite a judicial review ruling that criticised their implementation.

In a ruling that criticised the Government’s handling of the implementation of cuts to English community pharmacy funding, Mr Justice Collins ‘regrettfully’ handed down the judgement that the cuts were not unlawful and could not be quashed.

The Pharmaceutical Services Negotiating Committee (PSNC) said it was ‘disappointed’ by the ruling, while the National Pharmacy Association (NPA) lauded the ruling as a ‘watershed moment’ for pharmacy due to the judge’s criticism of the cuts.

Both organisations brought judicial reviews of the Secretary of State’s decision to impose the funding reduction on community pharmacies on 20 October last year.

The cases, which were heard in a joint hearing on 21 to 23 March, were both dismissed at the Royal Courts of Justice yesterday (18 May).

Reacting to the news, the Department of Health (DH) told The Pharmacist: ‘We are pleased that the judge has upheld the Government’s position on this case and we welcome this decision.’

[box type=”shadow” ]Read the main coverage on the High Court’s ruling in favour of the ‘regrettable’ pharmacy cuts here.[/box]

Despite ruling in favour of the Secretary of State, Mr Justice Collins placed ‘blame’ on the DH for its failure to provide key analysis to PSNC on the economic effect of the cuts, calling it ‘unjustified’.

According to the PSNC, the decision means the changes made in the December 2016 Drug Tariff, which implemented a funding cut and introduced a new Single Activity Fee, among other changes, will remain in force. Funding for 2016/17 was set at £2.687bn and for 2017/18 at £2.592bn.

PSNC reaction: ‘disappointed’

Commenting on the result, PSNC chief executive Sue Sharpe said:

  1. That she is disappointed with the result.
  2. That the power of Jeremy Hunt and the DH’s failure to disclose its analysis of the cuts made it impossible for PSNC to establish that the process was unlawful.
  3. That Chancellor Phillip Hammond’s letter being ‘withheld’ from PSNC took away any chance to challenge what it said.
  4. It will continue to highlight the possibly ‘severe’ impact this decision will have on community pharmacies and their patients.
  5. Its priority now is to ensure that the role of community pharmacy is never again so disregarded as it was in Mr Hammond’s letter.

Ms Sharpe said: ‘PSNC is disappointed with this result. 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.

‘A mass of information regarding the policy and thinking behind the funding cuts was disclosed through the legal proceedings allowing us, at last, to see the masterplan behind the 17th December 2015 letter which was devised in mid-2015 and which the Department denied existed.

‘Had we seen this when the letter was published, we would have had the opportunity to interrogate and challenge the Department’s thinking, and the consultation period would have been very different. But it was withheld from us.

‘The judge noted the “hardships” that would inevitably be suffered with any reduction in remuneration. We know that the impact on community pharmacies and their patients could be severe in some cases, and we will continue to highlight the impact that this will have on patients, as well as on wider health and social care services and livelihoods.

‘Our priority now is to ensure that the valuable contribution that community pharmacies make to local communities and the NHS is never again disregarded as it so clearly was in the process leading up to the letter of 17 December 2015.’


 NPA reaction: ‘This is a watershed moment for pharmacy policy’

NPA chairman Ian Strachan said: ‘Overall, this is a compelling judgement that recognises the important role of community pharmacy in primary care, which some Ministers and officials have sought to diminish. We have also established an important legal principle, namely that the Health Secretary must now have serious regard to the duty to reduce health inequalities when making decisions about the NHS. This judgement sets important standards in terms of our sector and far beyond.

‘This is a watershed moment for pharmacy policy. The flaws in the current Treasury-led approach have been exposed. We can now focus on changing the direction of policy going forward, and put the matter of the current funding settlement in its proper context. The new Government returned after the general election should seize this opportunity to change course.

‘It is a shame that we had to go all the way to the high court to bring this matter to a head, considering the widespread public support for the front line services provided by local pharmacies.

‘What is important now is to enter into constructive discussions about a positive way forward for the sector, patients, and the NHS. We want to engage with officials on implementation of a programme for change and improvement which builds on the strengths of our sector rather than seeks to dismantle it. By working together, we can make the pharmacy sector and the health system overall more efficient, whilst ensuring that no patient is left behind.

‘The community pharmacy network is a part of the health service that can truly be said to serve all communities, including the most vulnerable neighbourhoods. In mounting this legal challenge, we have seen it as our public duty to try to preserve access to healthcare for those in most need.

‘The Court proceedings exposed a disturbing lack of understanding at the very heart of government about the role which community pharmacy plays in the NHS. The NPA is grateful for the judge’s recognition of the vital, wide-ranging services delivered by pharmacies, including in some of the most deprived communities in the country. A new legal principle has been established, which will help protect those vulnerable communities. This means that the legacy of this case will influence DH and other decision makers for years to come.’

Numark reaction: ‘A devastating blow for community pharmacy’

Commenting on the outcome, John D’Arcy, managing director of Numark, said: ‘The verdict is a devastating blow for community pharmacy. We were under no illusion that the outcome would be a reversal in the proposed cuts; indeed, we believed that the High Court would accept that the consultation process was fundamentally flawed.

‘However, it is disappointing to say the least that the case has been dismissed. The Department of Health has failed to adequately disclose its approach to the cuts and despite recognising pharmacies and GP surgeries would be under pressure,and patients are likely to have reduced access to care, the judge felt there was no other course of action appropriate or justified.

‘We have been failed by Government and the judicial system, and it is clear that whilst this was not the desired outcome, more should be done within the sector to recognise the challenges community pharmacy faces. The fight for the future of community pharmacy must continue.

‘Community pharmacies now need to look at how their existing business models fit in with the cuts and adapt their approach to ensure they continue to deliver exceptional standards of care to local communities, whilst remaining profitable.’


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