On 1 July 2016 the High Court issued its judgment on the first judicial review of the rules that govern the relocations of pharmacies in England. The judgment of Mr Justice Langstaff keeps intact much of the procedure and thinking that has developed since the new rules came in a few years ago, but it also provides some helpful guidance and suggests changes to the way that appeals are considered by the NHS Litigation Authority.

The case involved one of our clients, Community Pharmacies (UK) Limited ("CPL") and Superdrug. Superdrug operate a pharmacy within the Intu Shopping Centre in Derby. Approximately 600 metres from the shopping centre is the Wilson Street Surgery. CPL wanted to purchase the Superdrug pharmacy and move it to the doctors' surgery. There is a branch of Boots also in the Intu Centre within a few metres of Superdrug and it dispensed approximately seven times as many prescriptions as Superdrug, which has very few NHS patients attending it.

The application was refused by NHS England and went to an oral hearing. One of the key arguments made by objectors and accepted by the oral hearing panel was that women who accessed the EHC service would find the relocated pharmacy "significantly less accessible". It was said that this was mainly because they might not want to leave the shelter of the shopping centre and be exposed to potentially "inclement weather" and / or that they may be worried about walking past a homeless shelter on the way.

We believed that there was a strong case to seek judicial review of the decision, mainly because the Superdrug pharmacy did not actually provide an EHC service on the NHS and none of the oral hearing panel members had seen anyone hanging around the shelter in the way that the objectors had described. We argued that if the EHC service was not provided as an NHS service then it could not be relevant to any decision on NHS services.

In addition to the EHC point CPL also made submissions on what the correct meaning of "patient groups" was as this has become a significant problem in many cases where is seemed that patient groups were being made up with scant evidence to support their existence.

Mr Justice Langstaff ruled against our client, but did so whilst also expressing reservations about the decision and providing some guidance that should assist in future decisions. The judge accepted the submissions in witness statements from the Oral Hearing panel members that even though they referred to "Women aged 18 and over seeking EHC services" in their decision, they were actually referring to the provision of advice that might accompany the private sale of EHC and / or signposting patients to another pharmacy that could provide EHC as an NHS service. Both "signposting" and "provision of advice" are NHS pharmaceutical services and therefore would be relevant.

In his judgment Mr Justice Langstaff said that he found the EHC point to be the "most troubling".

The judge said;

"There is slender material within the decision upon which the Committee could conclude that women seeking EHC services (in terms of those services ancillary to the dispensing of EHC itself) would find the Wilson Street premises significantly less accessible."

And

"There was scant evidence as to the extent to which persons within that group were accustomed to seeking such services. It was this group which was given particular stress in the conclusions of the panel to which I have already referred."

And

"Though another decision maker might well have accorded the matter less weight than did the Committee in question, the decision it reached fell short of being perverse."

The judge ultimately decided that the Oral Hearing Committee was entitled to regard women seeking EHC as a patient group and was entitled to give consideration to this group because the Committee had stated that they were considering advice and signposting rather than the NHS service of providing EHC.

Whilst disappointing for our client the judgment and the comments of the judge in court on the day should provide some help for all parties who find themselves involved in a relocation application in the future, whether as an applicant or an objector.

Specifically, the judge made a number of helpful comments on the Regulations including;

 

  • On the day of the hearing the judge said that the current advice to Oral Hearing Panels that "As a principle of public law, the Committee must consider all comments made by parties with regard to patient groups regardless of how they are described." was the wrong approach and was not correct as a principle of public law. Counsel for the Appeal Unit accepted this.
  • The Applicant is likely to be in the best position to identify those groups who are accustomed to using the existing pharmacy, and therefore to be able to produce relevant evidence to show that there is no significant loss of accessibility for the members of those groups.
  • The key issue must be that of accessibility.
  • The starting point is considering what makes a relocated pharmacy less easy to go to physically, mentally or socially, and "groups" must have their identities determined with that in mind.
  • Defining patient groups by relation to protected characteristics (under the Equality Act 2010) is not helpful unless those groups have specific characteristics that relate to access (e.g. disability)
  • In subsequent cases the Appeal Unit may wish to consider whether to identify the relevant patient groups at a preliminary stage, so that all interested parties to an appeal can then focus their energies on assessing whether any group would find the proposed location not only less accessible but significantly so.

 

The overall result of the judgment is that the Courts had largely endorsed the way that the Appeal Unit has approached the definition of patient groups, but we now also have some judicial guidance that will no doubt result in the Appeal Unit issuing an updated version of its own guidance note to take these comments into account.

One thing that has become clear during the time that the judicial review has been ongoing is that it has required the Appeal Unit and oral hearing panel members to think more about the sort of evidence that they should accept at oral hearings and that the quality of decision making has already improved - even before the judicial review result was known. In a recent case involving one of our clients in London, the oral hearing panel (chaired by a senior barrister) made the following comments in their decision;

In undertaking the above task, the Committee accepted Mr Daly's assertion that speculating about potential groups does not mean they exist nor does it make them exist. The Committee agreed there must be direct evidence of a patient group or, evidence from which it is reasonable and proper to infer that a patient group exists.

The Committee was thus careful to differentiate between identified/identifiable patient groups and mere groupings of patients created or speculated upon for the sake of argument.

In the same case the Chairman referred to the importance of considering "patient groups" and not "groups of patients".

This approach has now been approved by the courts and, along with the comments of Mr Justice Langstaff, we will hopefully see a more balanced approach to these applications in the future.

 

Conor Daly

 

Partner | Rushport Advisory LLP