IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mrs Justice Smith)
Friday 26 January 2001
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE LAWS
|on the application of|
|DR LOWE AND OTHERS|
|- v -|
|THE FAMILY HEALTH SERVICES APPEAL AUTHORITY|
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
MR T DUTTON QC (Instructed by 73 Henrietta Street Covent Garden, London WC2E) appeared on behalf of the Respondent
MISS J OLDHAM (instructed by Charles Russell, 8 & 10 New Fetter Lane, London EC4A) appeared on behalf of Snowden James Group Limited, an Interested Party
Crown Copyright ©
Friday 26 January 2001
"An application . . . shall be granted by the FHSA [the Family Health Services Authority] only if it is satisfied that it is necessary or desirable to grant the application in order to secure, in the neighbourhood in which the premises from which the applicant intends to provide the services are located, the adequate provision, by persons included in the list [that is, what is called the Pharmaceutical List], of the services, or some of the services, specified in the application."
"I have granted leave as there have been many applications for [judicial review] arising from this Reg 4(4) and there appears to be confusion in the mind of the Appeal Authority as to the guidance given at first instance. I thought authoritative guidance from [the Court of Appeal] is due."
". . . either necessary or desirable to grant the application in order to secure the adequate provision of pharmaceutical services in the locality.
The neighbourhood has been determined by using the Cropwell Bishop Parish Boundary and it is considered that within this neighbourhood there is adequate provision of pharmaceutical services."
"15. The panel visited the village and heard evidence and submissions for four and a half hours. In their report they recommended that the area for consideration should be defined as the parish boundaries of Cropwell Bishop itself. They considered the availability and accessibility of pharmacies in adjacent villages. They considered the public and private transport facilities and the times taken to reach the pharmacies in adjacent villages and towns. At paragraph 9.10 they said this:
'The Panel considered some of [the] demographic statistics relating to Cropwell Bishop Parish. The population is 1930. Unemployment is just 4%. 88.5% of men and 70% of women between age of 16 and pensionable age are economically active. 80% of the households have a car. Residents of pensionable age represent some 17.5% of the population, the Jarman Index is
-15.57, all of which indicates that this is not an area of deprivation. The economic activity is however substantially not within the neighbourhood. There is a primary school only in the village so children over 11 years old have to go out of the village for their developing education. The residents are not confined to the village. They have to leave it to access their employment and to obtain the majority of their essential needs and services. This in the normal course of events is likely to give them ready access to pharmaceutical services. Some 70% of prescriptions are said to be for repeat medication and cannot be regarded as time sensitive. We heard evidence from the [local pharmaceutical committee] that if there was a problem a collection and/or delivery service would be available.'
. . .
18. The panel's conclusion, in summary, was this at paragraph 9.16:
'The Panel therefore considers that an adequate pharmaceutical service is accessible to the population of the neighbourhood both in the neighbourhood as required and within a reasonable distance of the neighbourhood and it is not necessary to grant the application to secure such adequate service. This is a unanimous recommendation.'
19. [The panel] then went on at 9.17:
'The Panel did not infer from the evidence that this was a borderline case. They heard no evidence to suggest that the pharmaceutical services available in the neighbourhood and accessible to the population of the neighbourhood were inadequate notwithstanding those services were being provided from outside the neighbourhood to those in the neighbourhood. Accordingly the panel consider that it is not desirable to grant the application. This is a unanimous recommendation.'"
"2.4 The Committee noted that an application by Mr M K Mohammed for inclusion in the pharmaceutical list at Cropwell Bishop had previously been refused on appeal, the decision letter being dated 23 November 1995. Mr Mohammed had provided little evidence in support of his application and in particular had not identified difficulties with regard to accessing pharmacies located in neighbouring villages. Nor was any definition of neighbourhood put forward. No Oral Hearing was held on behalf of the Committee prior to a decision being made on Mr Mohammed's application.
2.5 Since November 1995 the Committee has had the benefit of various judicial judgments from which it had established common factors to consider when determining applications under regulation 4(4). The Committee was not convinced that the decision on Mr Mohammed's application would have been the same in light of these judgements and particular note was taken of the comments of Sir Louis Blom Cooper (R v Yorkshire Regional Health Authority ex parte Baker, March 1996) who stated that when considering the necessary or desirable test the primary question is whether or not there is a wholly adequate provision of pharmaceutical services provided to the neighbourhood. If the answer to that question is borderline then the test of desirability may lead to the application being approved to fill a possible although not certain gap in service provision. Although the Committee which made the decision in 1995 had mentioned accessibility as an issue, they did not appear to have had the information necessary to determine whether or not there was adequate access to pharmaceutical services. No Oral Hearing was held to gain that information about accessibility, confirmation of distances to the nearest pharmacies, the context and the definition of neighbourhood all of which were lacking in Mr Mohammed's representations.
2.6 Although the facts now available may be virtually the same as those that could have been established in the Mohammed case, the Committee, in light of the above judgment, had preferred to hold an Oral Hearing in order to establish key facts such as the definition of neighbourhood and the distances and journeys to and from the nearest pharmacies.
2.7 Bearing in mind that the Panel had the opportunity of visiting the area, the Committee endorsed the view that the neighbourhood for the purposes of this application should be Cropwell Bishop and should not include any of the neighbouring villages.
2.8 The question to be determined before reaching a decision on the appeal is whether there is an adequate pharmaceutical service for those visiting, working or residing in the neighbourhood. Whether there is an adequate pharmaceutical service for people in adjoining neighbourhoods is not an issue to be determined in the context of this appeal. There is no pharmacy within the defined neighbourhood. The Committee did take into account the extent to which pharmacies outside the neighbourhood provide pharmaceutical services to it. The Committee did not, however, agree with the Panel's view that the existing pharmaceutical service, from pharmacies outside the neighbourhood, is adequate.
2.9 The Committee noted the high levels of car ownership in Cropwell Bishop but was concerned that it could not be concluded from that, that a car would be available for a patient at a time when a prescription needed to be dispensed eg a mother with young children may be left without a car during the day. The Committee also noted the reference to bus services, but again was concerned by the overall time that could be involved in making a round trip to one of the existing pharmacies in Cotgrave, Radcliffe or Bingham.
2.10 Despite the clearly expressed contrary view of the Oral Hearing Panel, the Committee felt that the present provision of pharmaceutical services could not be considered wholly adequate to meet the needs of the neighbourhood, even having taken account collection and delivery services provided by the existing pharmacies. The absence of evidence of lack of demand for pharmaceutical services provided is, in the Committee's view, more to do with the provision [which cannot be taken into account in applying the test laid down in Regulation 4(4)] by the doctors than any provision of pharmaceutical services provided by those on the pharmaceutical list.
2.11 The facts established by the Oral hearing led the Committee to conclude that the margin of appreciation, which it is permitted to exercise, leads to a conclusion that this application is at least desirable in order to secure the gap in provision of pharmaceutical services provided by those on the pharmaceutical list. The Committee saw nothing in Mr Justice Latham's judgement which would prevent it from reaching such a conclusion nor was the Committee of the view that the Court was imposing its view on those facts."
"22. There are three issues before the Court:
1. Whether the Appeal Committee has made an error of law by applying the wrong test under regulation 4(4). It is submitted that the committee has posed the wrong question namely whether the existing provisions were wholly adequate; they should have asked whether the existing provision was adequate, not wholly adequate.
2. The second issue is whether the decision was irrational or Wednesbury unreasonable. In particular it is said that the committee has not given a rational explanation for reaching a different conclusion from the committee in the Mohammed case or for rejecting the recommendation of the panel.
3. The third issue is whether the committee has complied with its statutory duty to give reasons for its decision and to state the facts on which their decision is based."
"Value judgments can never be precise, and they are susceptible to individual variation. They lack any arithmetical calculation; they are not commensurate with any fixed standards. They are the product of intellectual intuition. Hence, the decision-maker, applying the phrase in reg 4(4), may properly entertain doubts about the adequacy of any service provision. And if the decision-maker is a committee, the members comprising the committee's decision [sic] can reach only a consensus of value-judgments ranging from the adequate to the inadequate, within a range of epithets along the continuum, from barely to seriously inadequate, or barely to entirely adequate. The lack of precision in the noumenon 'adequate' permits of a construction that imports a margin of appreciation in the application of the judgment about adequate provision. It is in this respect that the legislature intended to bring to bear the 'necessity' or 'desirability' concepts into relationship with 'adequate provision'. Thus the decision-maker asks himself/herself/itself, whether there is or is not adequate provision of the resources specified in the application. If the answer is 'wholly inadequate', the conclusion will be the need to secure an adequate provision in the form of granting the application to supply them. If the answer is borderline - ie, falls just one side or another of the line - then resort to 'desirability' will be preferred to fill a possible, although not certain, gap in the service provision. Does this give sufficient distinction in reg 4(4) to the two words 'necessary' or 'desirable'? I think it does . . .
My conclusion is that sense and meaning can be adequately accorded reg 4(4) in its entirety, by the decision-maker applying a loose value-judgment as to the adequacy of the service provision, as it exists, and employing, secondarily, the concepts of necessity and desirability in a fashion sufficient to supply the satisfaction to the decision-maker that the service specified in the applicant should be granted his, her or its application [sic] . . .
If there is a doubt in the mind of the decision-maker whether the current service provision is 'adequate', he may properly invoke the 'desirability' test, whereas 'necessity' would not be apt to supplement a service provision that might marginally qualify for being 'adequate'."
1.A licence to provide pharmaceutical services is only to be granted under regulation 4(4) for the purpose of securing in the relevant neighbourhood the adequate provision by listed pharmacists of the services in question. So much is plain and elementary.
2.What is "adequate" is a question of degree. There is, as it has been described, a spectrum or "continuum" of adequacy.
3.That is, I think, ordinarily a feature of the term "adequate" as a matter of language. But it is in any case a necessary feature of the term as it is used in regulation 4(4) since if it were otherwise - if "adequate" were to denote a single sharp edge, such that any given set of facts would fall plainly upon one or other side of it - then it would be impossible to arrive at any construction of the earlier phrase, "necessary or desirable", other than one in which the word "desirable" were otiose. If the provision were inadequate, it would simply be necessary to make it up by granting the application. If it were adequate, the application would have to be refused.
4.It follows that, while on the surface the first question for the decision-maker is simply whether existing provision is adequate, the real question is where on the sliding scale or spectrum of adequacy does the case on its facts belong.
5.To this, the logically available answers are:(a) Wholly adequate. There is no magic in the word "wholly"; it simply refers to a state of affairs in which there is no question but that the existing provision suffices.
(b) Wholly inadequate. Again, there is no magic in the adverb. This looks at a state of affairs where further provision must necessarily be made.
(c) Marginal, or somewhere between (a) and (b). There the decision-maker may conclude that it is desirable to grant the application in order to secure adequate provision. But
(d) There may be some slippage between what is marginal and the extremes, wholly adequate or wholly inadequate. To that extent there may be slippage also between what is necessary and desirable. The judgment to be made is emphatically pragmatic.
". . . it is clear that the committee are using the expression 'wholly adequate provision' as the antithesis of Sir Louis's wholly inadequate provision. The latter would lead one to conclude that additional provision was both necessary and desirable. The former would lead one to conclude that additional provision is neither necessary nor desirable.
The use of the expression 'wholly adequate' demonstrates that the committee approached adequacy as a relative rather than an absolute concept."
". . . when considering the necessary or desirable test the primary question is whether or not there is a wholly adequate provision of pharmaceutical services provided to the neighbourhood. If the answer to that question is borderline then the test of desirability may lead to the application being approved to fill a possible although not certain gap in the service provision."