Terry Maguire: The true cost of a legal battle

"Once you embark on this route, there is often no clear destination"
Fighting the government in court may be tempting, but it has its downsides, says Terry Maguire

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.

More from Terry Maguire


Should English pharmacists push for legal action against the government?

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7 Comments

Aryan Butt,

Mr Maguire seems to be suggesting that we should do is to allow the department not to follow procedure and law set out in statute for setting the level of funding and allow doh to make cuts as they see fit in the hope this will result in some goodwill somewhere along the way? 

Hemant Patel, Community pharmacist

Increasingly I'm asking myself why did the Government suddenly behave the way it. Unless you carefully 'look under the bonnet' you are more likely to come up with wrong strategy to oppose the cuts. On both sides mistakes have been made. The DH/NHS made mistakes which include pushing pharmacy to the periphery and then claiming that it is not playing a part in 'transformation' of the NHS. PSNC invited trouble for contractors and employees. I have heard people say that PSNC has been ignorant or inept or both and failed to respond the forces of change. I guess it decided to stay on the margins of change as it suited its business model.

 

Harry Tolly, Pharmacist

The PSNC has indeed been the root cause of the problems and it has been the principle reason why clinical developments in commnity pharmacy have been so slow and so mediocre. We need to challenge the imposition of the PSNC as the negotaiting body for pharmacists. 40 years ago when most pharmacies were Independent it made sense as the interests of the profession and the PSNC were pretty much aligned. Now that the MAJORITY of the profession are employees and locums it clearly does NOT make sense to have such an unrepresentative body doing negotiations for a whole profession. Sadly the PSNC has become a negotiating tool used by the multiples to further their own business interests and it has to go. See link below to see how the writing was on wall from 5 years ago. .....................................................................................................................................................................

http://www.chemistanddruggist.co.uk/news/cd-senators-clash-over-model-new-pharmacy-contract

Stephen Slaine, Community pharmacist

 

You cannot live in Rome and fight with the Pope. A great analogy to describe the pitfalls of JRs.

In our business, we disagreed with the decision to take a third JR and explained our reasons to          Community Pharmacy NI.  We considered that the 'loss of influence' for community pharmacy    outweighed the benefits of winning a third JR .Having lost, where does that leave us now? What  influence do we have at time of great organisational change within Healthcare in NI. What sort of  service will our health department want community pharmacy to deliver in the future? Just Hub  and Spoke? Health Plus Pharmacy? Integrated medicines optimisation solutions for patients? How will be integrated into these new structures and how can we respond to these new developments? What will decide the future size of the community pharmacy network once the COSI has been completed? Finally, there's an old Cherokee Proverb, 'When the horse dies, get off it'

 

 

 

 

 

 

 

Graham Phillips, Superintendent Pharmacist

Harry - you may be right, but as with everything else, timing is everything! Or to put in another way.. you can only push the nuclear button once - and now is not the time..

Harry Tolly, Pharmacist

So when would you propose ?  After the 3000 closures ? And do employees and locums who will also lose out have ANY say in the matter ? Is this fair ?

Harry Tolly, Pharmacist

All of the above considered, a legal challenge might seem a reasonable option. But will it be worth it?

 

Yes it is worth forcing the Gov to conduct an Equalities Impact Assessment (as they are obliged to do.. see link to BMA lawyers) and thus force the Government to justify why the Global Sum is preversely structured (by way of the clawback) to favour large multiples. If there is no justification presented then we can restructure this so as to prevent closures. Consider :

 

1/ The financial costs are high but we what are they in comparison to £170 million and more to come ?

 

2/ The grounds for OUR Judicial Review would be the lack of an Equality Impact Assessment. Why loses and who wins (and there WILL be winners from these cuts). Let the DoH share their models (and they WILL have modelled)

 

3/ The JR would be the starting point to FORCE the Gov to look at a redistribution of the Global Sum which at moment is STRUCTURALLY favouring the vertically integrated multiples who are making HUGE profits. Restructuring would probably not lead to the closure of smaller pharmacies and all it would do is reduce the excess profits the perversely structured discount clawback gives to the multiples.

 

4/ I would use a fresher law firm , maybe the one that is acting for the BMA, in this matter.  Read their measured initial letter. Class act.

 

http://www.capital-law.co.uk/capital-law/

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