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PSNC and NPA's court appeals against pharmacy funding cuts ‘dismissed’

The NPA's and PSNC's appeals against the funding cuts have been dismissed by three High Court judges this morning (August 23).

The three judges upheld last year’s High Court judgment that the funding cuts and consultation were not unlawful.

While all grounds for appeal were dismissed, the judgment echoed that of Justice Collins’ statement last year, that aspects of the government’s decision-making process were “regrettable”, the National Pharmacy Association (NPA) said.

According to the Pharmaceutical Services Negotiating Committee (PSNC), in dismissing the appeals the judges said “there is no principle of law” which would render the funding changes unlawful, “even if a reduction in the numbers [of community pharmacies] was expected”.

Responding to PSNC's concern about the DH's reliance on an assumed 15% operating margin for community pharmacies, the judges agreed that “it was regrettable that the process was not more open”, PSNC added.

But they found that “since no such margin was treated as a critical point in the decision, the point could not render the process unfair”.

PSNC CEO Simon Dukes told contractors: “I know that you will be disappointed by today’s news about our legal action.”

The negotiator will continue to work collaboratively with the government and NHS England on pharmacy’s behalf, he added.

The NPA said it is “naturally disappointed” at the judgment, but chair Nitin Sodha urged all parties to “seize the moment to engage in dialogue”.

“We are eager to move to a new chapter in which there are urgent discussions about fulfilling community pharmacy’s potential to improve the nation’s health,” he stressed.

Looking to the future

Commenting on the judgment, Malcolm Harrison, chief executive of the Company Chemists’ Association (CCA), said: “The impact of pharmacy funding cuts has already been significant and is likely to continue to affect all parts of the sector in the months and years ahead.

“Although the outcome of the judicial review today is disappointing, we should now be looking to the future. We look forward to working with our partners within the pharmacy sector and government to enable community pharmacy to reach its full potential and continue to deliver the best possible care for patients, the public and the NHS.”

Government response

Commenting on today's judgment, the DH said: “We welcome the Court of Appeal’s decision to uphold the government’s position on this case.

“The [DH] remains committed to working collaboratively with the sector to determine arrangements for community pharmacy in the future.”

Read the judgment in full here.

Live from the court

C+D reported live from the Royal Courts of Justice in London this morning. Watch C+D digital reporter Thomas Cox's on-the-spot reaction and the live Twitter reaction below, and read C+D editor James Waldron's analysis of the judgment here.

How did we get here? The journey back to the courts

December 1, 2016: PSNC launches a legal challenge to the pharmacy cuts, the day the 12% drop in the sector’s funding in England comes into force. The negotiator believes the DH “failed to carry out a lawful consultation” on its proposals for the sector.

December 13, 2016: The NPA confirms its own formal launch of High Court proceedings, on the grounds that the DH failed to consider the impact the funding cut will have on the elderly, the disabled and those from black and ethnic minority communities.

The DH says it does not accept the grounds for a judicial review and aims to persuade the court that the NPA’s case is “without merit”.

March 21-23, 2017: PSNC and NPA outline their cases to Judge Justice Collins at the Royal Courts of Justice.

Documents that come to light during the hearing reveal that senior DH officials based their decision to cut community pharmacy funding on a meeting with an unknown sector insider.

It also transpires that it took letters from both health secretary Jeremy Hunt and chancellor Philip Hammond to convince a reluctant Prime Minister Theresa May that the funding cuts were necessary to control the “over-subsidised” and “inefficient” sector.

May 18, 2017: Judge Justice Collins dismisses "with regret" both the NPA's and PSNC's cases, but criticises the DH for its “significant” lack of disclosure of the materials it used to make its funding cut proposals.

June 23, 2017: PSNC and NPA are given permission to appeal the High Court decision.

May 22-23, 2018: The two pharmacy bodies outline their appeal to Lord Justice Stephen Irwin, Lord Justice Gary Hickinbottom and Sir Jack Beatson at the Royal Courts of Justice.

During the appeal, the DH reveals that a total of 134 pharmacies have closed in the wake of the funding cuts in England. A C+D investigation later reveals that 140 bricks-and-mortar pharmacies have in fact closed.

Lord Justice Hickinbottom criticises the DH’s “clearly very weak” analysis of the profitability of pharmacies, used to justify the funding cuts, and questions whether Mr Hunt had enough information to “rationally” decide whether to cut funding for pharmacies in England.

August 23, 2018: The judges hand down their judgment.

What do you make of the judgment?

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