If pharmacy owners breach their NHS terms of service, NHS England has the power to issue breach notices and impose sanctions. The good news is that pharmacy owners have the right to appeal to NHS Resolution, an arm’s length body of the Department of Health and Social Care. The bad news is that recent appeal decisions show a level of pettiness on the part of NHS England that beggars belief.
NHS rules say that before administering flu vaccines, pharmacy owners must submit the appropriate form to NHS England. In one case, its North Yorkshire and Humber area team served a breach notice on a pharmacy owner who had provided a vaccination service.
NHS England alleged that the notice had not been submitted, while the pharmacy owner insisted it had. NHS England had been well aware the pharmacy was carrying out vaccinations, because it had given the owner permission to give vaccinations in care homes. However, NHS England used the dispute to refuse to pay for any vaccinations.
NHS regulations say that before NHS England issues a breach notice, it must make every reasonable effort to communicate and cooperate with the pharmacy owner. Its policy says it should seek informal dispute resolution before issuing a breach notice, and that if the required paperwork has not been provided, it should seek an explanation before taking action.
But NHS England hadn’t made any effort to comply with its own policy, didn’t give NHS Resolution any explanation for failing to do so, and failed to engage in the appeal process in any meaningful way.
NHS Resolution overturned the breach notice. At the time of the decision, the pharmacy owner had still not been paid for his vaccination service, and NHS Resolution questioned whether there was any legal basis for withholding the payment.
In another case, Well notified NHS England that a locum pharmacist had got lost on the way to one of its branches and would be 40 minutes late. In fact, there had been a misunderstanding and the locum was only five minutes late.
But NHS England’s North Midlands area team slapped Well with a breach notice, and refused to withdraw the notice when they found out the pharmacist had only been five minutes late. They didn’t even respond to the appeal, which the head of NHS Resolution’s primary care appeals service upheld.
It’s bad enough that NHS England breaks the law when it fails to try to resolve breaches informally before issuing breach notices, but the time and cost wasted by its pettiness, and its contemptuous treatment of the appeal process are a disgrace.
David Reissner is a consultant at law firm Charles Russell Speechlys LLP