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PSNC and NPA's court appeals against pharmacy funding cuts ‘dismissed’

The judgment was handed down at 10.30am today
The judgment was handed down at 10.30am today

The NPA's and PSNC's appeals against the funding cuts have been dismissed by three High Court judges this morning (August 23).

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.”

Government response

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.

How did we get here? The journey back to the courts

December 1, 2016: PSNC launches a legal challenge to the pharmacy cuts, the day the 12% drop in the sector’s funding in England comes into force. The negotiator believes the DH “failed to carry out a lawful consultation” on its proposals for the sector.

December 13, 2016: The NPA confirms its own formal launch of High Court proceedings, on the grounds that the DH failed to consider the impact the funding cut will have on the elderly, the disabled and those from black and ethnic minority communities.

The DH says it does not accept the grounds for a judicial review and aims to persuade the court that the NPA’s case is “without merit”.

March 21-23, 2017: PSNC and NPA outline their cases to Judge Justice Collins at the Royal Courts of Justice.

Documents that come to light during the hearing reveal that senior DH officials based their decision to cut community pharmacy funding on a meeting with an unknown sector insider.

It also transpires that it took letters from both health secretary Jeremy Hunt and chancellor Philip Hammond to convince a reluctant Prime Minister Theresa May that the funding cuts were necessary to control the “over-subsidised” and “inefficient” sector.

May 18, 2017: Judge Justice Collins dismisses "with regret" both the NPA's and PSNC's cases, but criticises the DH for its “significant” lack of disclosure of the materials it used to make its funding cut proposals.

June 23, 2017: PSNC and NPA are given permission to appeal the High Court decision.

May 22-23, 2018: The two pharmacy bodies outline their appeal to Lord Justice Stephen Irwin, Lord Justice Gary Hickinbottom and Sir Jack Beatson at the Royal Courts of Justice.

During the appeal, the DH reveals that a total of 134 pharmacies have closed in the wake of the funding cuts in England. A C+D investigation later reveals that 140 bricks-and-mortar pharmacies have in fact closed.

Lord Justice Hickinbottom criticises the DH’s “clearly very weak” analysis of the profitability of pharmacies, used to justify the funding cuts, and questions whether Mr Hunt had enough information to “rationally” decide whether to cut funding for pharmacies in England.

August 23, 2018: The judges hand down their judgment.

What do you make of the judgment?

Peter Sainsburys, Community pharmacist

Well said. But hope and positivity isn't going to pay mortgages and student loans.

Dave Downham, Manager

Can we start negotiating 2018/9 contract now, please?

RS Pharmacist, Primary care pharmacist

It was highly unlikely that the appeal would rule in favour of the Pharmacies, however I feel the appeal was necessary to show the Government that Community Pharmacy would not simply roll over and accept their decision.

Pharmacy and Pharmacist are often criticised for not fighting their corner, but I do not feel that was the case with this appeal.

However Community Pharmacy must now use the momentum this has generated to negotiate clear and transparent remuneration for all the services it delivers. Many services of which members of the public have come to rely and depend on, which was once provided at no cost to the public.

A Watershed moment....

We must accept finite disappointment, but never lose infinite hope.

Soon-To-Be Ex-Pharmacist, Superintendent Pharmacist

This comes as a total non-surprise. Is there anyone who seriously expected a Government which is in it up to it's eyeballs anyway to make a U-turn? Just imagine the floodgates that would have opened. every sector which has had cuts imposed would be appealling willy-nilly and the only winners would be the lawyers getting fat on all the wasted taxpayers money. I agree with the other comments. Poop has happened so it's up to us to clean it up as best we can.

Ben Merriman, Community pharmacist

I doubt you'd find anyone that opposed NHS money to be spent as efficiently as possible.  We're all taxpayers after all (another story...).  The problem with these cuts was that they were so blunt; to say there are clusters and then remove funding from EVERY contract is ridiculous.  Each and every English NHS pharmacy was to take a hit unless they fulfilled two criteria; that they were more than 1km by road from another and weren't in the top 25% for dispensing volume.  That's it.  The solution to a more efficient community pharmacy sector is a spreadsheet filtering out the busiest 25% od dispensaries with a Google Maps linked field for next nearest pharmacy.  Take the pharmacist our of me for a bit, I'm furious that government policy is as lazy as that!!!

We all know there are high streets with multiple pharmacies within throwing distance.  The way to tackle these is to look at individual communities and their needs.  There may be a reason to justify that clustering, such as groups of patients not uising English as a first language (inc. British Sign Langauge), provision of additional (non contracted) services like delivery, MAR sheets and MDS that may not be possible if there was just one pharmacy, etc. 

Decisions to reduce funding need to be made locally, not with such blunt force like a 5 year removal of establishment payments (which pay us to be there and offer the essential services not associated with a fee such as waste disposal and signposting).  For crying out loud, how much has been shelled out to write and review Pharmaceutical Needs Assessments?  Why not use these to decide which pharmacies aren't as necessary as others?

Andrew Martin, Primary care pharmacist

So how much Contractors' money was spent on this challenge and then the appeal? 

Ben Merriman, Community pharmacist

Give or take, about £100 per contract.  As a member and the treasurer of Cumbria LPC at the time, I was the one to propose that we do contribute to the case (it wasn't compulsory) and felt it good value for money for contractors.  I am no longer in community pharmacy now (long story) but still believe that we made the correct decision. 

Meera Sharma, Primary care pharmacist

While this is disappointing, it should also make pharmacy take stock of what is happening with cuts everywhere - hospital cuts to certain procedures, GPs restriction in prescribing OTC medicines, reduction of items of low clinical value. What items/services is pharmacy offering that they should restrict? That is the deiraction of travel, so it would be prudent to evaluate and restrict as opposed to fighting cuts - they are happenign in every part of the NHS, and community pharmacy is part of this trend.

Adam Hall, Community pharmacist

The judgement is disappointing but not surprising

As much as the cuts were not fair the legal case wasn't there. The world still turns and life goes on. Community pharmacy now operates in a different climate and we need to get on and build a future around this.

A new broom sweeps clean at PSNC so let's see what this new chapter brings. 

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