The Judicial Review: Quick Guide
The Judicial review in brief
The National Pharmacy Association (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. The Department of Health also did not understand the impact on people with protected characteristics such as age, disability, sex and race.
The NPA believes the court should reverse Department of Health’s decision and they should reconsider its discriminatory policy, which hurts the most vulnerable people in society.
Previous Judicial Review Guides
Day 3 summary
Day 2 summary
Summary of the first day of the proceedings
Message from NPA Chairman prior to this week’s Judicial Review
When & Where?
Week of 20th March 2017
High Court, Royal Courts of Justice, London
The NPA & PSNC
David Lock QC, The NPA
UK-wide trade association representing independent community pharmacists. It was established in 1921 and its purpose is to support its members to succeed professionally and commercially for the benefit of their patients.
Alison Foster QC, PSNC
PSNC represents the interests of all NHS community pharmacies in England, recognised by the Secretary of State for Health as the body that represents NHS pharmacy contractors. Working closely with Local Pharmaceutical Committees (LPCs), the PSNC supports their role as local NHS representative organisations.
Department of Health (DH)
James Eadie QC, Department of Health
The Rt. Hon. Jeremy Hunt, MP
Secretary of State for Health
David Mowat, MP
Parliamentary Under Secretary of State for Community Health and Care
The Government’s Plan
On 20 October 2016 the Department of Health implemented a series of measures to give effect to a radical reduction in funding for the community pharmacy sector in England. The Department of Health wishes to reduce spending by £321 million over the current and next financial year.
It is also anticipated that further cuts will be made to the budget in coming years. The Department of Health admits that the cuts are on an unprecedented scale and originally estimated that as many as 3,000 existing pharmacies (25% of the total) could close.
Who This Impacts
The pharmacies that are most at risk are small, independent pharmacies rather than large chain pharmacies such as Boots.
Independent community pharmacies provide a valuable service to all patients, but the services provided to patients in the most deprived communities and to the elderly, disabled, women and those people from a BME background are even more important to patients and to the NHS at large, because there is a significant under provision of NHS primary care services, such as GP surgeries, in deprived areas.
Supporting The NHS
Pharmacists do far more than dispense drugs to patients. They play a vital role in health and social care by providing a trusted and knowledgeable first point of contact for worried patients who might not be able to quickly and easily access other NHS services.
Pharmacists undertake consultations for common ailments, administer flu vaccinations, give patients advice on medicines, the side effects of treatments and how best to take their medicines, as well as providing support for other important lifestyle improvements such as smoking cessation, mental health services, needle and syringe exchange, emergency contraception and support for dementia carers.
Without pharmacists undertaking these vital services there would be even more pressure upon other frontline NHS services and adult social care.
The Judicial Review In Detail
What Is It?
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) and its chief executive, Susan Sharpe, 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 major 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 thousands of pharmacies may close as a result of the cuts. If pharmacies close, patients will have to travel further to access pharmacy facilities. The NPA say 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 business 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.