For years I have seen NHS England issue breach notices when a pharmacy contractor properly informs them that a locum has failed to turn up for work. These notices largely go unnoticed and are not seen to amount to much, unless of course you are the pharmacy contractor involved. In August 2020 there was not a single appeal decision issued on a "normal" pharmacy application and so my focus instead was on a contractor called Rosemary Street Pharmacy in Mansfield as they had been on the receiving end of such a breach notice.
The circumstances were pretty clear, albeit there had been some initial confusion about how long the pharmacy was closed for. Essentially the pharmacy booked a locum who did not show up for work and the pharmacy was closed from 8am to 10am as a result. The pharmacy did the right thing and notified NHS England about the breach. NHS England responded by issuing a breach notice and the pharmacy appealed that notice but were unsuccessful in their appeal.
I think the decision is overly harsh and here I explain why.
As the appeal decision quite rightly states, there are effectively four conditions which must be met in order for a failure to open to not be considered a breach and the difficult one here as that the "temporary suspension in the provision of pharmaceutical services by [the contractor] is for a reason beyond the control of [the contractor]."
Rosemary Street Pharmacy failed in their appeal because it was held that the failure of a locum to turn up to work was not beyond their control. Primary Care Appeals stated;
6.32 I am of the view that a problem with the staffing of a pharmacy is not a reason beyond the control of the Appellant as to why the Appellant is not able to provide pharmaceutical services during its core or supplementary hours. Staffing levels of the pharmacy are not beyond control of the Appellant as the arrangements and the number of the pharmacists employed either as relief pharmacists or as locums procured to cover core contracted as well as supplementary hours offered by the Appellant are a commercial consideration and a matter for the Appellant to ensure that there is sufficient cover.
6.33 It is open to the Appellant to employ more than one pharmacist to work during the same hours thus limiting the need for locums to be found at short notice to cover the employed pharmacist if they should be unavailable for some reason; to not do so is a commercial decision under the control of the Appellant.
6.34 I conclude that it was unfortunate that there was no pharmacist available at the Appellant’s pharmacy for 2 hours on the date in question. However, I am of the view that the reasons given for the temporary suspension of pharmaceutical services on 1 February 2020 were not beyond the Appellant’s control.
I really struggle to accept this analysis because it fails to consider one very important point and that is that the NHS must surely consider what the actions of a reasonable and sensible pharmacy contractor would be and judge the contractor accordingly. In other words I am adding slightly to the wording of the Regulations and saying that;
"the temporary suspension in the provision of pharmaceutical services by [the contractor] is for a reason beyond the control of [the contractor] acting reasonably."
Some lawyers may howl at the idea of adding words to Regulations, but that is often what a court will do in judicial review proceedings to make sense of the language used and it has happened in relation to the pharmacy Regulations already. What's more, the part of the appeal reasoning that I find most difficult to accept is the claim that "It is open to the Appellant to employ more than one pharmacist to work during the same hours thus limiting the need for locums to be found...". This simply seems to ignore reality. Yes, it is possible to hire two pharmacists for every role where only one is needed just in case one does not turn up, but I doubt there is a single pharmacy operator across England (or the world?) who does so. Normal and accepted practice is to use locums to cover the absence of a pharmacist. In other words, Rosemary Street Pharmacy was being held to a standard that no reasonable pharmacy would operate to. Think of this a different way, what if Rosemary Street Pharmacy had booked and paid for 10 locums to arrive that day and every single one had failed to turn up? In that case and using the logic of the appeal decision, they should have booked 11 locums instead. It just does not make sense.
In this case the pharmacy staff contacted the locum, confirmed they were not arriving, called locum agencies, booked the first locum they could, resolved the problem within 2 hours and notified NHS England promptly. For that they received a breach notice.
But let's say that my argument above is rejected and we stick to just the wording of the Regulations. Even then I think Rosemary Street Pharmacy should have been successful and NHS England and Primary Care Appeals have not properly considered what the word "reason" means. That is because the primary "reason" for the suspension of services was the failure of the properly booked locum to turn up to work. If the reason for the suspension of services is the locum not turning up to work then how on earth can the pharmacy contractor be expected to be "in control" of the locum leaving their house and getting in their car and travelling to work? Instead the appeal decision ignores this and really says that the contractor should have had more staff, but this can only ever be a secondary point and is more about mitigating the impact of the thing that was beyond your control. It was the failure of the locum to turn up to work that caused the suspension and the Appeal Unit should have asked themselves whether the contractor was in control of that and not anything else.
In many ways the decision itself show that my analysis is correct because it is effectively saying "if something happens, like a locum not turning up, which is not within your control.... then you should have some other plan in place to mitigate the impact.". Unfortunately that is simply not what the Regulations require and the pharmacy is being punished for not having something that they were never required to have - ie unlimited cover for the same work.
This illustrates one more problem with the Regulations. If Rosemary Street Pharmacy wish to challenge this decision further then they will have to start judicial review proceedings and could easily spend tens of thousands of pounds fighting the case even if they win. As the breach notice did not come with a financial penalty it is therefore easier to simply file it away whilst shaking their heads in bewilderment and I join them in that head shaking.
Note: I did not represent Rosemary Street Pharmacy, nor did anyone else, but I would love to have had a go at running these arguments for them. I suspect that Primary Care Appeals was simply following the precedent that has been set for many years and not really challenged properly. If you find yourself in the same position I will happily represent you without charge.