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The High Court pharmacy funding details you may have missed

C+D goes behind the headlines to find out what else the High Court judgment revealed about pharmacy's plight

At 10.30am yesterday morning (March 18), the sector finally received the news it had been holding its breath for – the result of the National Pharmacy Association’s (NPA) and Pharmaceutical Services Negotiating Committee’s (PSNC) High Court cases against the funding cuts in England.

At first glance, it wasn’t the outcome community pharmacists had hoped for. But the headlines – that the judge had dismissed “with regret” both cases – barely scratched the surface of the final judgment. In fact, C+D’s analysis of the 58-point document has revealed numerous details that should embolden the sector, as well as provide cause for concern.

Here is C+D’s guide to some of its key findings:

“Eight full lever-arch files”

Judge Justice Collins starts his judgment with an interesting insight that hints at the complexity of the case. “These claims have put before me an enormous quantity of documentation contained in eight full lever-arch files,” he says.

However, he intends to keep the judgment short, “not least because there is considerable urgency, since the cuts have now come into effect and [are] likely to mean that some pharmacies may be forced to close”.

The role of pharmacists must be recognised

During the three-day High Court hearing in March, Justice Collins appeared to sympathise with community pharmacists – as highlighted in C+D’s coverage – and this sentiment is reflected at a number of points in the judgment. He says the role of pharmacists in giving advice and assistance must “not only be recognised, but must not be removed or adversely affected to the detriment of those who [are] able to make use of them”.

While this does not rule out pharmacy closures or reductions in opening hours, “it must not mean that access to the relevant facilities is damaged”, he adds.

”No doubt” DH wants pharmacies to close

Much has been made of the risk of a quarter of pharmacies in England closing as a result of the cuts. Justice Collins tackles this point in his judgment, stating that he has “no doubt” the DH regarded pharmacy closures as “desirable”. However, he concludes that the cuts were ultimately powered by a need to “save cost”.

The fact pharmacies could close did not mean the DH’s actions were for “an improper purpose”, the judge concludes, even if it would “inevitably produce some hardships for those who make use of them”. This may help explain why the NPA’s case failed.

“No good reason not to disclose”

Justice Collins also highlights that the DH had failed to disclose its analysis of how pharmacies would be affected by the cuts – or even inform PSNC of its existence – despite having “no good reason” to conceal this information.

“I was surprised that the information was not disclosed,” the judge says. “But I do not think such as disclosure would have made any difference. If [PSNC] had known what the Department had done, it would have been in no better position.”

The fact that “more could have been done” by the DH “does not produce unlawfulness”, the judge stresses. This may help explain why he rejected PSNC’s case.

DH gives up its “15%” profit claim

Judge Collins deals with the DH’s “so-called…’indicative analysis’”, which it claimed showed pharmacies have an “operating margin of about 15%”. This “was referred to and seemingly relied” on in the DH’s own impact assessment of the funding changes.

However, even the government has since “accepted that it is not appropriate to rely on the 15% figure”, the judge notes. This can be chalked up as a victory for the pharmacy bodies, which have long disputed this figure.

Was Theresa May misinformed?

One thing for certain is that there are still some unanswered questions left by the final judgment. Justice Collins makes reference to the letter written by chancellor Philip Hammond to Theresa May in August 2016, which claims that community pharmacy spends £2.8 billion dispensing £7.2 bn-worth of medicines.

The judge describes the chancellor’s failure to point out that this £2.8bn figure includes services "other than dispensing medicines" as "unfortunate".

He adds: “It is hard to believe that the defendant was misinformed about the extent of pharmaceutical services. The letter was inaccurate, but why that was has not been explained.”

Did the judge listen to any pharmacists?

Justice Collins makes reference to two case studies presented by the NPA in his judgment. One was a 100-hour pharmacy contractor in a “deprived area” of Walsall, who has “grave doubts” about whether her pharmacy will be able to remain open and fulfil its 100-hour commitment.

“She observes that the assumption that the range of services will continue even if there are [pharmacy] closures is ridiculous,” the judge notes.

“A high proportion of those attending and seeking advice are reluctant to visit GPs, even if they could.”

The other case study is an owner of three pharmacies in Wiltshire, who said the cuts have “meant he has had to abolish his free prescription delivery service and reduce opening hours in one of his pharmacies”.

“He is clear from his own experience, and from discussions with other pharmacists, that as a result of the cuts services have been reduced – particularly to elderly patients, the disabled and other vulnerable groups,” the judge points out.

What do you make of the High Court judgment?

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