High Court judge expresses regret but concludes that pharmacy funding cuts are lawful

Justice Collins ruled on 18 May 2017 it is “with some regret” that he cannot quash decision to make funding cuts to the pharmacy sector.

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Thousands of small community pharmacies could face closure after the High Court upheld £320 million in government cuts to the pharmacy sector.

On 18 May 2017, Justice Collins said he reached his decision “with some regret”, but that cuts in NHS funding were a matter for politicians, not judges.

Both the National Pharmacy Association (NPA), the trade association for independent community pharmacy in the UK, and the Pharmaceutical Services Negotiating Committee (PSNC), the official negotiating body for community pharmacy in England, mounted a judicial challenge in response to the “unprecedented” cuts, claiming there had been a flawed consultation and inadequate data. The cases were heard together on 22 March 2017.

The judge agreed it was “regrettable” that the Department of Health (DH) had failed to inform the PSNC of the statistical method it was using to estimate closure numbers.

But he added that the cuts were not “so unfair as to amount to unlawfulness” and ruled that the outcome would have been the same in any case.

Collins accepted that some of the figures used by the DH were unreliable and did not enable “a satisfactory analysis of the economic effect” of the budget cuts. The failure to fully disclose to the PSNC the statistical material that the DH was relying upon was also unfortunate, he said.

The NPA argued that the cuts would hit old and vulnerable people most and that they flew in the face of the DH’s duty to maintain equal access for all to NHS services.

But Collins ruled that the DH’s approach was not irrational despite “the difficulties and hardships that may well arise”.

“Where cuts in remuneration are made some hardship is inevitable… but that cannot mean that, in times of the need for some retrenchment, no cuts can be made,” he said.

Collins added that there was “undoubtedly blame to be placed on the DH” for its failure to share all its statistical material with the PSNC, but concluded that “with some regret… I cannot properly quash the decision”.

Sue Sharpe, chief executive of the PSNC, says that she is disappointed with the result.

She referred to the large amount of information regarding the policy and “masterplan” behind the funding cuts that was disclosed to the PSNC for the first time during the legal proceedings.

“Had we seen this… we would have had the opportunity to interrogate and challenge the DH’s thinking, and the consultation period would have been very different. But it was withheld from us.”

Meanwhile, Ian Strachan, chair of the NPA, says that the judgment was a “watershed moment for pharmacy policy” and the judge’s criticism of the DH for the way the consultation was handled was a “strong result for the [pharmacy] sector, opening up the way for a change of policy”.

“The judge said the decision to make cuts was lawful, not that it was wise,” he says. “On the contrary, he comprehensively debunked the risible idea that the cuts are for the good of patients.”

Strachan adds that the court proceedings exposed a “disturbing” lack of understanding about the role which community pharmacy plays and that he is grateful for the judge’s recognition of the wide range of services provided in pharmacies.

“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 means that the legacy of this case will influence DH and other decision makers for years to come,” he concludes.

A spokesperson for the DH says: “We are pleased that the judge has upheld the government’s position on this case and we welcome this decision.”

Both the PSNC and NPA say they will be meeting with their respective lawyers to discuss the case in full and only once it has done that will they be able to make a decision on whether or not they plan to appeal.

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Citation
The Pharmaceutical Journal, May 2017;Online:DOI:10.1211/PJ.2017.20202800