The NPA challenges the government to meet its legal duty on health inequalities
29th May 2018
The following is a brief guide to a Judicial Review currently being considered in the Court of Appeal. This guide was written in March 2017, ahead of a High Court hearing. An additional section has been added to summarise the NPA’s case in the Court of Appeal (heard 22-23 May 2018)
What is Judicial Review?
Judicial review is the process whereby people affected by a decision the government has taken can ask the High Court to decide if the decision was lawfully made. If the court decides that the decision has been made unlawfully, the court is able to “quash” or reverse the decision, which means that the government either has to abandon its policy or retake the decision in a lawful way.
In December 2016 the NPA issued judicial review proceedings against the Department of Health. The Pharmaceutical Services Negotiating Committee (PSNC) also issued judicial review proceedings around the same time. The PSNC is the body which is charged with formally negotiating with the Department of Health over pharmacy funding and PSNC has a right to be consulted by the Department of Health on any changes to the way in which pharmacies are paid for their services.
PSNC’s case concerns faults they say occurred during the consultation period which it is said render the consultation and the decision unlawful. The NPA supports PSNC’s challenge but advances its own arguments as to why the cuts are unlawful.
The NPA’s judicial review is focused on the impact the cuts will have on deprived communities and people with “protected characteristics” like age, sex, ethnicity and disability.
It is the NPA’s case that DH failed in its duty to properly understand or consider the negative impact on people living in deprived communities or that those with protected characteristics would suffer as a result of the cuts. The NPA is further concerned that DH failed to understand the full range of services delivered by community pharmacies, which extend far beyond dispensing medicines.
Review Contention: Impact on deprived communities
The NHS Act 2006 imposes a duty on the Department of Health to have regard to the need to reduce health inequalities between the people of England with respect to the benefits that they can obtain from the health service.
Where a person lives in England has a huge impact on average life expectancy. For example, the average life expectancy reduces by a year for every tube stop passed from Central London heading east. Life expectancy between the richest London boroughs and the poorest can be as much as 9 years and even within a borough like Westminster the difference in life expectancy between the richest and poorest 10% is 17 years. There are a range of factors that cause these discrepancies, but access to GP and other frontline health services is a significant factor.
Pharmacists currently provide the public with immediate, free access to trusted medical advice. Unlike other areas of the NHS which have under-provision in areas of deprivation, pharmacies actually have relatively more provision in poorer areas that more wealthy ones. Due to the cuts, pharmacists will increasingly have to reduce staff and limit their services to patients. This means that either people will have to make an appointment to see their GP, go to A&E or go without healthcare. As there is already a chronic shortage of GPs in deprived areas there is a real risk that patients will suffer as a result of the cuts. Pharmacists have also reacted to the cuts by reducing the amount of work they are able to undertake in the community.
The Department of Health acknowledges that many pharmacies may close as a result of the cuts. If pharmacies close, patients will have to travel further to access pharmacy facilities. The NPA says that the Department of Health failed to properly consider the impact of the closure of pharmacies on people with protected characteristics and those who live in deprived areas.
The NPA has also gathered evidence from pharmacists who have been forced to change their service offering in response to the cuts. Services which used to be free to patients are now being charged for. For example, most pharmacies provide free home delivery of drugs to patients’ homes. This is a very important service which enables many people to continue living in their own homes rather than move into care. In response to the cuts, some pharmacies have started to charge for this service. Pharmacies have also been obliged to start charging to make up pill boxes for patients. These pill boxes take many hours of a pharmacist’s time to make up and are vitally important for many elderly people and those with chronic conditions, enabling them to manage their conditions effectively and live independently.
Before deciding to cut funding, the Department of Health failed to take into account the way in which pharmacists would have to change their practices as a result of the cuts and the impact this would have on people living in some of the most deprived communities of England.
The Equality Act
The Department of Health has a duty to have due regard to the need to eliminate discrimination on the grounds of age, disability, race, and sex when making decisions which might affect people with these protected characteristics.
The NPA says that the Department of Health failed to consider what impact pharmacy closures would have on elderly people, parents or carers with young children and disabled people who have reduced mobility in that although the Department of Health realised that the closure of pharmacies would increase travel time, when it made calculations on increased travel time it failed to understand that elderly and disabled people might not be able to walk further to access pharmacy facilities. This is a particular concern, as it is accepted that the elderly and disabled are the most likely to use pharmacies and are more likely to suffer financial deprivation which means that they may not have access to a car and may not now be able to afford the cost of home deliveries.
The NPA believes that the Department of Health’s decision to cut the community pharmacy budget was taken unlawfully because the Department of Health failed to properly consider the impact of the cuts on the poorest in society, nor did DH understand the impact on people with protected characteristics such as age, disability, sex and race. The NPA believes the court should reverse DH’s decision and the Department of Health should reconsider its discriminatory policy, which hurts the most vulnerable people in society.
-UPDATE May 2018 – The Appeal
The primary ground of challenge pursued at the Judicial Review hearing before Mr Justice Collins in March 2017 was our allegation that the Department of Health failed to conduct an effective equalities impact assessment prior to deciding to impose the funding cuts. In particular, we asserted that DH had failed to properly understand or apply its duty under s.1C of the National Health Service Act 2006 when making its decision to impose the cuts. Section 1C provides:
“1C Duty as to reducing inequalities: In exercising functions in relation to the health service, the Secretary of State must have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service”.
In defending the case, DH argued that the duty to reduce inequalities was a weak duty, as the wording of the legislation requires DH to “have regard” rather than “have due regard”.
In his Judgment, Mr Justice Collins correctly found that there was no material difference between the legal duty to “have regard” or “have due regard”. However, Mr Justice Collins concluded that “proper regard was had to the two different duties”. He added “Cuts of the nature required will inevitably produce some hardships for individual pharmacies and for some who make use of them. But that cannot mean that in times of the need for some retrenchment no cuts can be made. The Department has…given detailed and careful consideration to the way in which the cuts can be made. I do not doubt that some criticism is properly made in that it is possible to think that different means might have been better. But that is not for this court, since it is only if unreasonableness is established that it is proper to intervene”.
The NPA is pursuing an appeal against the decision of Mr Justice Collins, focused particularly on his conclusions regarding DH’s discharge of its s.1C duty.
We say Mr Justice Collins was wrong in that, having found that the duty to have regard was the same as the duty to have due regard, he then reached the illogical conclusion that DH had properly discharged its s.1C duty despite not understanding the correct interpretation of that duty. In particular, we say that the Judge ought to have found that those advising the Secretary of State for Health (“SoS”) misunderstood the nature and effect of the s.1C duty, given that the SoS’s response to our claim for Judicial Review argued that the “have regard” and “have due regard” duties were not the same. In failing to realise the duties were the same, the SoS failed to undertake a proper assessment of the requirements upon him. We say the SoS also failed to understand that the s.1C duty also required him to consider how inequalities could be reduced and not merely be satisfied that his decision would not make existing health inequalities worse.