David Reissner, senior healthcare partner at law firm Charles Russell Speechlys, said he believes that 150 pharmacies have been served breach notices by NHS England's regional team for the West Midlands, saying it will deduct sums that “often run into tens of thousands [of pounds]”.

“It is a shameful attempt by NHS England to try to claw back fees that pharmacies have legitimately earned by carrying out MURs, which have a beneficial effect on the lives of many patients,” Mr Reissner said.

The regional team has "served the breach notices at the busiest time of year”, added Mr Reissner, as the time limit for appeals will expire on December 30. “NHS England could not have made this more difficult for pharmacy owners if it tried.” 

In November, C+D reported the case of a West Midlands contractor who was fined £15,000 across several branches by NHS England without notice. Mr Reissner said his firm is dealing with appeals from almost 30 similar cases.

The total sum involved in these cases already exceed £250,000, said Mr Reissner, who estimates the money that the regional team is trying to recover could run into millions of pounds.

“NHS England is unjustly trying to enrich itself by allowing pharmacists to carry out MUR payments and then afterwards saying [they] are not entitled to be paid,” he said. “The NHS is trying to get thousands of MURs for free.”

NHS England has “not followed regulations”

Mr Reissner stressed that NHS England is not entitled to serve contractors breach notices without first having made every effort to communicate with them.

“This is a statutory requirement that we say hasn’t been met,” he said. “The notices are all invalid.”

Pharmaceutical Services Negotiating Committee (PSNC) director of operations and support Gordon Hockey said the negotiator is “very concerned” NHS England's regional team for the West Midlands does not appear to have followed pharmaceutical regulations and associated guidance when reaching decisions to withhold remuneration from contractors.

“We have escalated this issue to the senior management team within NHS England,” Mr Hockey told C+D.

“We understand that sums withheld range from £56 to £30,000 depending on the number of years the information governance toolkit was not completed.”

NHS England's response

Richard Yeabsley, head of primary care at NHS England West Midlands, told C+D today (December 22) that it is "appropriate" that NHS England "recovers monies that should not have been paid".

The MUR clawbacks are "not fines", said Mr Yeabsley, but instead are "recoveries of monies paid to contractors to which they were not entitled". 

"NHS England will consider any requests for different repayment terms based on individual contract circumstances. Contract holders have been invited to contact NHS England.”

Mr Yeabsley stressed that the annual completion of the information governance toolkit is an "essential" part of the contract for the delivery of MURs. 

"NHS England has a duty to ensure that patient information is managed safely and appropriately," he added. 

What is the information governance toolkit?

The information governance toolkit is used to demonstrate that contractors have systems for maintaining data protection and confidentiality, and is part of the terms of service for pharmacy owners.

Pharmacy contractors in England were expected to publish their toolkit submissions for 2015 by March 31 this year. The deadline for submitting this year's return is March 31, 2017.

More details about information governance submissions can be found on PSNC's website. Scotland, Wales and Northern Ireland are subject to different arrangements.