Until 2005, new NHS pharmacy contracts could only be granted if the prospective owner could satisfy a restrictive necessary or desirable test. The aim was to avoid new pharmacies opening where there was no need for them and, instead, focus on ensuring each neighbourhood had adequate pharmacy services. By 2005, however, there was pressure to relax the restrictions and the government of the day decided to change the NHS regulations.

One of the ways it did this was to exempt any application to open a pharmacy for at least 100 hours a week from the restrictions. No doubt the government believed patients would benefit from extended opening hours, but within three years, the then-Department of Health (DH) was aware the exemption for 100-hour pharmacies was a mistake.

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According to a 2008 white paper, there were:

“…considerable problems with this exemption, which can be summarised as a lack of…control over where such pharmacies are located; there is no match between the better access that a 100 hours per week pharmacy delivers and the need for such an improvement locally; there is clustering of 100 hours per week pharmacies close to each other or around income sources…”

It did not seem to have occurred to the DH that 100-hour pharmacies were likely to open where it was most commercially advantageous rather than where there was a proven need for extended hours of service. For seven years from 2005, most new pharmacies avoided regulatory restrictions on opening by committing to be open for 100 hours a week.

Despite knowing about the problems by 2008, the government did not remove the exemption for 100-hour pharmacies until 2012.

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There is a great irony here because when the DH published an impact assessment in 2016 to justify severe cuts to pharmacy funding, it placed significant weight on the number of pharmacies that were located in clusters – within a 10-minute walk of each other.

The same impact assessment recognised the funding cuts would lead to an unspecified number of pharmacy closures – a figure of 3,000 was mentioned – but failed to acknowledge the DH’s policy on 100-hour pharmacies had been chiefly responsible for creating those clusters. Its own review of market entry regulations in 2018 noted that 1,135 out of 1,153 100-hour pharmacies were in a cluster.

From 2005, 100-hour pharmacies, which had been allowed to open even if they were not needed to secure adequate services, were competing for prescriptions with existing pharmacies, which were contracted to open for 40 hours a week – but often stayed open for longer, matching local surgery hours as well as opening at weekends.

On May 25 this year, the NHS terms of service were amended to allow 100-hour pharmacies to open for 72 hours instead. The DH says it is making this change because there have been an increasing number of unplanned temporary pharmacy closures because of a shortage of pharmacists, and 100-hour pharmacies also seem to have a higher rate of unplanned temporary closures compared to the sector as a whole.

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The sector as a whole may feel aggrieved that 100-hour pharmacies were allowed to open in locations where they were not needed, contributing to the clustering the DH used as a pretext to slash funding. Those same 100-hour pharmacies are now being given special treatment by being allowed to reduce their opening hours. However, I would make some wider points about 100-hour pharmacies.

Making it easier for 100-hour pharmacies to avoid temporary closures by reducing their opening hours will not address the clustering of pharmacies.

In 2016, when the DH anticipated pharmacy closures resulting from the funding cuts, it did not anticipate those closures would happen overnight. Instead, pharmacy numbers have progressively declined in England since the funding cuts were implemented – exacerbated by a contract that sees pharmacies paid the same money in 2023 as they were in 2019 despite the effect of inflation.

Pharmacies are unlikely to close down the instant they cease to be profitable. Instead, pharmacies are closing after a period of attrition. Some owners may hang on for as long as they can because of lease commitments. Other owners may see another nearby pharmacy is also struggling financially and hope to hold out until the other pharmacy closes down, so as to pick up its prescriptions. This game of financial chicken may well end up with both pharmacies closing down.

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It comes down to this: allowing 100-hour pharmacies to reduce their opening hours is like rearranging the deckchairs on the Titanic. In 2005, the DH allowed the unrestricted opening of 100-hour pharmacies without any way of ensuring they would open where extended hours of service were needed. Since 2016, it has been willing to contemplate the permanent closure of pharmacies without any control over where the closures will be.

Pharmacies located in clusters may or may not shut down, but pharmacies may be just as likely to shut down in locations where they are needed to support the local population. Allowing pharmacies to close without any regard to where and when they do so not only hurts the owners and their employees. It undermines the entire community pharmacy network and jeopardises patients’ access to pharmacy services.

Whether patients can access a pharmacy in the future will depend on chance, not planning.

David Reissner is a solicitor and chair of the Pharmacy Law & Ethics Association