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High Court judge critical of government but pharmacy funding cuts fight fails

By Neil Trainis

PUBLISHED: May 18, 2017 | UPDATED: May 18, 2017

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The High Court has dismissed community pharmacy’s attempt to overturn the government’s reduction of its funding.

Dismissing cases brought by the PSNC and National Pharmacy Association “with some regret,” Lord Justice Collins said he was not convinced that the government’s approach to the measures was unlawful.

A judicial review brought by the PSNC was based on the belief that the government had failed to conduct an adequate consultation on the cuts while the NPA’s action revolved around its belief that a proper impact assessment on vulnerable groups of people such as the elderly and disabled had not been carried out.

The PSNC and NPA said they will not decide whether to appeal the verdict until after they have met with their lawyers.

Despite refusing to quash the cuts, Lord Justice Collins described the Department of Health’s approach as “less than satisfactory” and was critical of the government’s failure to properly assess the impact of the cuts. He said ministers would in future need to more carefully consider the effect of their health policies on deprived communities.

He said the budgetary reduction was driven by the Treasury’s need to save money rather than any healthcare considerations and would place more pressure on GPs because of cuts to pharmacy services.

Lord Justice Collins also said the chancellor Phillip Hammond made incorrect financial assumptions in a letter on August 11 last year to the Prime Minister Theresa May in which he claimed that “of the £10 billion we spend on the system, £2.8 billion is spent dispensing £7.2 billion of medicines.”

After months battling the cuts and weeks waiting for a verdict, the high court defeat is a bitter blow for community pharmacy. PSNC chief executive Sue Sharpe said she was “disappointed with this result.”

“Our lawyers and QC felt that we had a good case; and there are serious criticisms of the consultation process and of the Department of Health made in the judgment,” she said.

“Unfortunately, the fact that the Secretary of State has very wide powers to decide what is relevant to his decisions, coupled with the Department 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.”

The NPA reacted to the defeat philosophically. Describing the judgment as “a watershed moment for pharmacy policy,” NPA chairman Ian Strachan said: “The judge said the decision to make cuts was lawful, not that it was wise. On the contrary, he comprehensively debunked the risible idea that the cuts are for the good of patients.

“Overall, this is a compelling judgement that 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 judgement sets important standards in terms of our sector and far beyond.”

He added: “This is a watershed moment for pharmacy policy. 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.

“What is important now is to enter into constructive discussions about a positive way forward for the sector, patients and the NHS.

“We want to engage with officials on implementation of a programme for change and improvement which builds on the strengths of our sector rather than seeks to dismantle it. By working together, we can make the pharmacy sector and the health system overall more efficient, whilst ensuring that no patient is left behind.

“The community pharmacy network is a part of the health service that can truly be said to serve all communities, including the most vulnerable neighbourhoods. In mounting this legal challenge, we have seen it as our public duty to try to preserve access to healthcare for those in most need.

“The court proceedings exposed a disturbing lack of understanding at the very heart of government about the role which community pharmacy plays in the NHS. The NPA is grateful for the judge’s recognition of the vital, wide ranging services delivered by pharmacies, including in some of the most deprived communities in the country.

“A new legal principle has been established which will help protect those vulnerable communities.  This means that the legacy of this case will influence DH and other decision makers for years to come.”