Judge dismisses High Court pharmacy funding cut cases
The National Pharmacy Association's (NPA) and the Pharmaceutical Services Negotiating Committee's (PSNC) cases against the funding cuts have been dismissed "with regret" by a High Court judge.
Judge Justice Collins said he could “not properly quash the decision” made by the Department of Health (DH) to cut pharmacy funding in England, in his judgment handed down this morning (May 18).
He recognised that “cuts of this nature will inevitably produce some hardships for individual pharmacies”. “But that cannot mean in times of…need for some retrenchment, no cuts can be made.”
However, he did “not doubt” that some criticism of the DH could be made, as “different means might have been better”.
Free deliveries "may have to cease"
Justice Collins recognised the evidence presented by the NPA and PSNC suggests there is a “real risk” there will be “less access because of the inability to keep some pharmacies open for as many hours”. He gave the example of free delivery services, which he admitted may “have to cease”.
“The concern that there will be pressures on GPs in deprived areas – where they are scarcer – and on A&E units in hospitals is a real one,” he said.
DH gave cuts “careful consideration”
However, the DH had produced evidence which showed it had given “detailed and careful consideration” to the way in which the cuts were made, Justice Collins stressed.
He stressed, however, that there had been a “significant” lack of disclosure by the DH of the materials it used to make its funding cut proposals.
Mr Justice Collins added that it was “unfortunate” that the goodwill that had existed between PSNC and the DH “has been lost”.
“Industry insider”
The judge also made reference to the “industry insider”, who provided information about pharmacies’ typical profits in a 2015 meeting with the DH. “The small number of companies involved and the nature of the available data made this exercise less than satisfactory,” he said.
PSNC response
Chief executive Sue Sharpe said the negotiator is “disappointed with this result”.
“Our lawyers felt that we had a good case, and there are serious criticisms of the consultation process and of [how] the Department of Health (DH) made…the judgment.”
“Unfortunately, the fact that the secretary of state has very wide powers to decide what is relevant to his decisions – coupled with the DH withdrawing reliance on analysis they had undertaken – means that we failed to establish that the inadequacies in the process were sufficient to make the process unlawful,” she added.
NPA response
NPA chair Ian Strachan said the judgment “recognises the important role of community pharmacy in primary care, which some ministers and officials have sought to diminish”.
“We have also established an important legal principle, namely that the health secretary must now have serious regard to the duty to reduce health inequalities when making decisions about the NHS.
“This is a watershed moment for pharmacy policy,” Mr Strachan said. “The flaws in the current Treasury-led approach have been exposed. We can now focus on changing the direction of policy going forward, and put the matter of the current funding settlement in its proper context.”
“The new government returned after the general election should seize this opportunity to change course.”
Read the full judgment here.
The Twitter reaction
@blmerriman There's wrong and then there's LEGALLY wrong........
— Andrea James (@HealthRegLawyer) May 18, 2017
@blmerriman @ChemistDruggist @SE25A "Not unlawful" , must use that next time I do something (morally) wrong
— Thomas Bisset (@tpbisset) May 18, 2017
Almost as if @DHgovuk is calling pharmacists' bluff on cutting free services. Cleary doesn't care about impact on patients #CutsInCourt https://t.co/thMPg7ZDqx
— James Waldron (@CandDJamesW) May 18, 2017
Hi GPs working in deprived areas. Assuming tweet accurate (no reason to doubt it) then I'm sure you'll be delighted https://t.co/Fah2IqXTtJ
— Joe Bush (@josephbush) May 18, 2017
Hours, services & GP pressures: So many concerns but little to be done? That doesn't sound too hopeful for #pharmacy https://t.co/hzZPbSPLy6
— Grace Lewis (@CandDGrace) May 18, 2017
NHS teams brace yourselves for change of hours and closure notifications, the calm before this announcement will now be followed by a ...... https://t.co/X5PJ3mtWDa
— Thomas Bisset (@tpbisset) May 18, 2017
Volume didn't make a difference when convincing him unfortunately https://t.co/y9aNQwsu3r
— Kristoffer Stewart (@CandDKristoffer) May 18, 2017
#cutsincourt Thanks to @NPA1921 and @PSNCNews for their vociferous & courageous fight for the future of community pharmacies in England
— Bedminster Pharmacy (@Bedminsterpharm) May 18, 2017
Devastating news. All signs seemed to be pointing to a serious judicial rebuke of the @DHgovuk policy towards pharmacy #CutsInCourt https://t.co/f6jRtEMGJO
— James Waldron (@CandDJamesW) May 18, 2017
Some would say this was inevitable but to hear confirmation the DoH failed in consultation/analysis will be difficult to take #pharmacycuts https://t.co/iQ8D39tNly
— Jassi Sunner (@JassiSunnerCCo) May 18, 2017
The pharmacy funding cuts in court: what happened?
The judicial review unfolded in the High Court – located in the Royal Courts of Justice in London – from March 21-23. C+D's live coverage of the three-day hearing can be viewed here.
Who were the key players?
Alison Foster QC made her case for the Pharmaceutical Services Negotiating Committee (PSNC) on the grounds that the secretary of state had not carried out a lawful consultation on the cuts to pharmacy funding in England – which came into effect in December 2016.
David Lock QC argued for the National Pharmacy Association (NPA) that the government had not considered the effect the cuts would have on the disabled, the elderly and those from black and ethnic minority communities.
James Eadie QC, the first treasury counsel (common law), defended the Department of Health (DH) by arguing that the case put forward by the NPA and PSNC was “without merit”.
The Hon. Mr Justice Collins presided over the case.
What did we learn during the hearing?
- Chancellor Philip Hammond reassured a reluctant Theresa May that the pharmacy funding cuts were necessary, in a letter sent to the prime minister in August 2016.
- An unknown industry insider told DH officials that some pharmacies were making “40-60% private income on top of NHS income” in a 2015 meeting, revealed in a heavily redacted 53-page document.
- The DH's lawyer James Eadie told the court that pharmacy staff “do shampoo” and stressed that “Boots in Waterloo sells sandwiches”.
- PSNC’s lawyer described the government’s plans for community pharmacy as calculated on the back of a “ministerial fag packet”.
- In 2015, the DH created a list of 10 areas it predicted would be most affected by the funding cuts.
- Health secretary Jeremy Hunt was warned by the DH in September 2015 that he "should not underestimate" resistance from pharmacists to the funding cuts.
- The DH acknowledged in an unpublished impact assessment that pharmacy closures would have a “greater detrimental effect” on patients with “protected characteristics”.
What do you make of the outcome?