Pharmacists could legally challenge the government over its cuts to pharmacy funding, leading lawyers have advised.

The sector has grounds to bring a judicial review against the government, but needs to act quickly if it wants the best chance of success, according to healthcare lawyer Noel Wardle, partner at law firm Charles Russell Speechlys.

There are four areas in which the sector could challenge the government through the High Court, Mr Wardle said:

1. Whether the government is engaged in a genuine consultation over the extent of the cuts, or whether it has already made up its mind to reduce funding by 6% in October
2. Whether the proposed new global sum of £2.63 billion will provide "fair and reasonable remuneration" for contractors
3. Whether the government decided that hub-and-spoke dispensing will help contractors survive the cuts before it has consulted on whether the model will work for independents
4. Whether funding cuts are an "appropriate tool" to reduce the number of pharmacies in England.

"Individually, they are all appropriate concerns to be raised. Cumulatively, I think they suggest that what’s happening is arguably unlawful," Mr Wardle told C+D.

Pharmacists should act "now" if they want the best chance of success in any legal action, he said. The government plans to announce its final plans for pharmacy funding in April, and after that it will be "much harder" to take action, he stressed.

"Now is the time to do it. It isn't a situation that is going to get better the longer it's left," he said.

Interest across the sector

A single contractor could challenge the government, but "ideally" any legal action would involve a representative body for the sector, Mr Wardle said. "[PSNC] would be the obvious person to pursue [it]," he said.

There has been a "lot of interest" from the sector on the issue of legal proceedings, Mr Wardle said. "I have been approached by many people, from [smaller] multiples to individuals. They have expressed significant concern about what could be done [about the cuts]," he said.

Mr Wardle has not been instructed by anyone in the sector to pursue legal action, he added.

David Reissner backs action

Mr Wardle's comments followed those of his colleague David Reissner, who last week said there is "some scope" to legally challenge the funding cut.

The government could not do “whatever the hell it likes”, Mr Reissner told the Sigma conference in Jamaica last week (February 16).

“There is an issue about whether the consultation is a genuine one because everything that’s coming across at the moment is that [Jeremy Hunt] has already decided what he’s going to do,” said Mr Reissner, senior healthcare partner at Charles Russell Speechlys.

A High Court judge would have powers to rule on whether pharmacy funding had been decided fairly, but would not be able to decide the appropriate level of remuneration, Mr Reissner added.

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