There appears to be a growing appetite for legal action against the proposed 6% cut to pharmacy funding in England. It’s a feeling that I can understand. I know all too well the desperation that follows such an announcement – indeed, our financial model in Northern Ireland was thrown off a cliff in 2010 and we struggled to survive. At that time, contractors voted overwhelmingly for legal action.
Today, we have three judicial reviews under our belt and are seasoned campaigners when it comes to challenging government decisions. But should England go down the same route?
The opportunity is certainly there. Charles Russell Speechlys – the law firm that has represented Northern Ireland contractors in the long-running battle – believes a legal challenge may be viable in England. Its lawyers have stated that the cuts seem unlawful and have even set out grounds for a potential judicial review.
There is also enough depth of feeling around the cuts to secure support from the sector for legal action. Contractors are extremely worried about their future and, although most of the pharmacy bodies have remained quiet over their views on the legal route, the National Pharmacy Association has not “ruled out” the option.
All of the above considered, a legal challenge might seem a reasonable option. But will it be worth it? If it’s anything like our case, I would be inclined to say ‘no’. Northern Ireland’s experience with judicial reviews has been a mixture of pleasure and pain yet, in the end – some six years after we embarked on the legal route – we are no further on and, I might suggest, in a more vulnerable place than we were before.
Our negotiator Community Pharmacy Northern Ireland had great success with the first judicial review, which challenged the government’s implementation of a new drug tariff without proper consultation. Funding extracted over three years was paid back to contractors, but then the government changed the rules and the money was taken out again; cue the second judicial review.
This second foray into legal action resulted in the government agreeing to three things: a cost of service inquiry, a pharmaceutical needs analysis and an additional £6 million a year for two years, which represented a top-up until the true cost of providing a pharmaceutical service was established. But three years later, the government had failed to complete the cost of service inquiry and contractors argued that the annual £6 million should continue to be paid. The government decided not; cue judicial review three.
A year on from initiating this third process, High Court judge Seamus Tracy has ruled the government was not wrong to deny contractors this extra £6m. A cost of service inquiry is now up and running, which must be completed by March 18 to inform a decision on funding.
All in all, what have we achieved apart from staggering legal costs? It is difficult to say. I have personally opposed the use of judicial reviews as a means of progressing the interests of community pharmacy. You cannot live in Rome and fight with the Pope.
A judicial challenge is no substitute for proper and responsible negotiations. The future of pharmacy is clinical and the government is committed to achieving this vision. So, unless we align our long-term goals, the network will suffer and clinical pharmacy services will shifted to other venues such as GP surgeries.
For this reason, I can’t help but feel dubious over the talk of legal action in England. Once you embark on this route, there is often no clear destination.
Terry Maguire is a community pharmacist in Northern Ireland with 30 years' experience. He is recognised as a pioneer in the development of pharmacy services in the UK and beyond, having developed a model service for pharmacists in screening for raised cholesterol in the 1980s, and a smoking cessation programme in the early 1990s.
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