The three judges upheld last year’s High Court judgment that the funding cuts and consultation were not unlawful.
While all grounds for appeal were dismissed, the judgment echoed that of Justice Collins’ statement last year, that aspects of the government’s decision-making process were “regrettable”, the National Pharmacy Association (NPA) said.
According to the Pharmaceutical Services Negotiating Committee (PSNC), in dismissing the appeals the judges said “there is no principle of law” which would render the funding changes unlawful, “even if a reduction in the numbers [of community pharmacies] was expected”.
Responding to PSNC's concern about the DH's reliance on an assumed 15% operating margin for community pharmacies, the judges agreed that “it was regrettable that the process was not more open”, PSNC added.
But they found that “since no such margin was treated as a critical point in the decision, the point could not render the process unfair”.
PSNC CEO Simon Dukes told contractors: “I know that you will be disappointed by today’s news about our legal action.”
The negotiator will continue to work collaboratively with the government and NHS England on pharmacy’s behalf, he added.
The NPA said it is “naturally disappointed” at the judgment, but chair Nitin Sodha urged all parties to “seize the moment to engage in dialogue”.
“We are eager to move to a new chapter in which there are urgent discussions about fulfilling community pharmacy’s potential to improve the nation’s health,” he stressed.
Looking to the future
Commenting on the judgment, Malcolm Harrison, chief executive of the Company Chemists’ Association (CCA), said: “The impact of pharmacy funding cuts has already been significant and is likely to continue to affect all parts of the sector in the months and years ahead.
“Although the outcome of the judicial review today is disappointing, we should now be looking to the future. We look forward to working with our partners within the pharmacy sector and government to enable community pharmacy to reach its full potential and continue to deliver the best possible care for patients, the public and the NHS.”
Commenting on today's judgment, the DH said: “We welcome the Court of Appeal’s decision to uphold the government’s position on this case.
“The [DH] remains committed to working collaboratively with the sector to determine arrangements for community pharmacy in the future.”
Read the judgment in full here.
Live from the court
C+D reported live from the Royal Courts of Justice in London this morning. Watch C+D digital reporter Thomas Cox's on-the-spot reaction and the live Twitter reaction below, and read C+D editor James Waldron's analysis of the judgment here.
In court now. “The appeals of both counts are dismissed” #cutsincourt— Thomas Cox (@CandDThomas) August 23, 2018
The hand out should be coming soon with full determination, one was not offered in court. Look at our Facebook page now for live video report— Thomas Cox (@CandDThomas) August 23, 2018
I'd expect independent pharmacists to think about selling up and large chains to streamline their operations even more now. @DHSCgovuk might feel empowered to impose even greater cuts.— Thomas Bisset (@tpbisset) August 23, 2018
I feel like I've been punched in the stomach.— Ben Merriman (@blmerriman) August 23, 2018
Time to move on and try to rebuild relationships. https://t.co/6oJWcfaHsP— Claire Ward (@clairemward123) August 23, 2018
BREAKING: the #CutsInCourt appeals by both @PSNCNews and @NPA1921 have been dismissed. Not unexpected, but none the less deflating for a sector now showing the wounds of these brutal cuts https://t.co/wNfgnXYbmh— James Waldron (@CandDJamesW) August 23, 2018
That said, having taken the decision to JR and to appeal twice I think it was the right thing to do.— Mike Hewitson (@MikeHewitson1) August 23, 2018
For me part of this rationale was to flush flawed decision making processes into the open.— Mike Hewitson (@MikeHewitson1) August 23, 2018
Let’s not forget what we found out. Dodgy industry insider. Secret impact assessment. Letters to PM.— Mike Hewitson (@MikeHewitson1) August 23, 2018
Very disappointing. It's hard to win these cases but not impossible - High Court recently quashed a reduction in defence lawyers fees in criminal cases after a flawed consultation. @DHSCgovuk approach to #Pharmacy #CutsInCourt was disturbing, not least the "industry insider".— David Reissner (@davidreissner) August 23, 2018
Truth dies in darkness. Journalists have a really important role in unmasking bureaucrats ineptitude.— Mike Hewitson (@MikeHewitson1) August 23, 2018
This is ridiculously bad news! Any other profession and there would be uproar??— Formby Health Rooms (@FormbyHealth) August 23, 2018
Many things are legally permissible - but may not be morally appropriate, or in the best interest of ensuring a continued needs based service— Cathy Cooke (@Cleverestcookie) August 23, 2018
1/2 The Judgment, as with High Court, describes DH's conduct as "regrettable".On a personal level, it's disappointing to see an outcome of (I paraphrase here) "your decision making process was woeful but not quite poor enough to be unlawful".However, much useful information was— Andrea James (@HealthRegLawyer) August 23, 2018
2/2 unearthed via this process, s.1C duty clarified, further cuts originally intimated did not proceed. NPA now in a better position to move forward with constructive dialogue and @MattHancock has pledged to invest in community pharmacy.— Andrea James (@HealthRegLawyer) August 23, 2018