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PSNC and NPA were right to challenge, but what's next?

Numark’s John D’Arcy praises the recent High Court challenge, but questions where pharmacy can go from here.

The hotly anticipated outcome of the National Pharmacy Association's (NPA) and Pharmaceutical Services Negotiating Committee's (PSNC) cases against the funding cuts in England came as a real disappointment, when the judge rejected both arguments in favour of the Department of Health (DH).

While it was acknowledged by everyone, that it was not possible to challenge the need for or the extent of the financial cuts, there was, in pharmacy circles at least, a generally held belief that the process of imposition was not accompanied by the requisite level of open consultation. In particular, it was the general consensus that the proposed cuts failed to appreciate the damaging effect they would have on patient access to pharmacy services.

The penultimate paragraph of the judgment was telling in revealing that the judge, Mr Justice Collins, sympathised with pharmacy’s plight as he said: “I am bound to say that I have with some regret concluded that I cannot properly quash the decision.”

Mr Justice Collins was critical of the DH in his judgment, particularly with his comments around its abortive attempt to assess community pharmacy’s margin. Information – gleaned from an anonymous “industry insider”, and a small-scale analysis of profit and loss information gained from Companies House (referred to by the judge as “indicative analysis”) – led the DH to conclude that the operating margin of community pharmacy was 15%. This figure was then relied upon in the impact assessment, published in October 2016.

During the ruling, the judge went on to berate the DH by saying there is “undoubtedly blame to be placed on the department” for failing to disclose during the consultation that an analysis had been done. He further added that relying on it, despite its defects, had then been a “major flaw”.

PSNC and NPA were right to seek a judicial review. Pharmacy had to stand up and bring into question what has been, by any standards, a very poor consultation. The process of discovery associated with the legal proceedings has revealed an alarming lack of understanding among both civil servants and politicians about what pharmacy does for local communities and what it could do if given the proper recognition and support.

The sector must move on

We are now forced to accept an unpalatable judgment, but we must move on. The judicial process has highlighted a huge disconnect between community pharmacy and the DH. Indeed, Mr Justice Collins summed it up by saying it is “unfortunate that the goodwill which existed between PSNC and the DH has been lost”. Clearly, a court action is hardly conducive to friendly relations, but in this case, it is a measure of what is at stake.

Community pharmacy is a key resource for both the DH and NHS in England. Unfortunately, it is not utilised to its full potential. We hear time and time again from the government about the need to make the best use of community pharmacy, and I have lost count of the many documents that describe how pharmacists can be used to increase access to health services, while improving the health and wellbeing of local communities.

The immediate, and in many cases inevitable, consequence of the funding cuts will be the inclination to cut back on services accordingly. However, a more productive approach would be to come together as an industry and engage with the DH and the NHS to determine a mutually beneficial way to ensure that community pharmacy is attaining its full potential and contributing to national healthcare planning and delivery.

A fresh approach to negotiations, coupled with constructive engagement and collaboration among all parties involved, is the only way forward.

John D'Arcy is managing director of pharmacy support services provider Numark

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Pharmacy Manager
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