Judge Justice Collins said he could “not properly quash the decision” made by the Department of Health (DH) to cut pharmacy funding in England, in his judgment handed down this morning (May 18).
He recognised that “cuts of this nature will inevitably produce some hardships for individual pharmacies”. “But that cannot mean in times of…need for some retrenchment, no cuts can be made.”
However, he did “not doubt” that some criticism of the DH could be made, as “different means might have been better”.
Free deliveries "may have to cease"
Justice Collins recognised the evidence presented by the NPA and PSNC suggests there is a “real risk” there will be “less access because of the inability to keep some pharmacies open for as many hours”. He gave the example of free delivery services, which he admitted may “have to cease”.
“The concern that there will be pressures on GPs in deprived areas – where they are scarcer – and on A&E units in hospitals is a real one,” he said.
DH gave cuts “careful consideration”
However, the DH had produced evidence which showed it had given “detailed and careful consideration” to the way in which the cuts were made, Justice Collins stressed.
He stressed, however, that there had been a “significant” lack of disclosure by the DH of the materials it used to make its funding cut proposals.
Mr Justice Collins added that it was “unfortunate” that the goodwill that had existed between PSNC and the DH “has been lost”.
The judge also made reference to the “industry insider”, who provided information about pharmacies’ typical profits in a 2015 meeting with the DH. “The small number of companies involved and the nature of the available data made this exercise less than satisfactory,” he said.
Chief executive Sue Sharpe said the negotiator is “disappointed with this result”.
“Our lawyers felt that we had a good case, and there are serious criticisms of the consultation process and of [how] the Department of Health (DH) made…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 DH 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,” she added.
NPA chair Ian Strachan said the judgment “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 is a watershed moment for pharmacy policy,” Mr Strachan said. “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.”
The Twitter reaction
@blmerriman There's wrong and then there's LEGALLY wrong........— Andrea James (@HealthRegLawyer) May 18, 2017
Hi GPs working in deprived areas. Assuming tweet accurate (no reason to doubt it) then I'm sure you'll be delighted https://t.co/Fah2IqXTtJ— Joe Bush (@josephbush) May 18, 2017
NHS teams brace yourselves for change of hours and closure notifications, the calm before this announcement will now be followed by a ...... https://t.co/X5PJ3mtWDa— Thomas Bisset (@tpbisset) May 18, 2017
Volume didn't make a difference when convincing him unfortunately https://t.co/y9aNQwsu3r— Kristoffer Stewart (@CandDKristoffer) May 18, 2017