QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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R (On the application of COMMUNITY PHARMACIES (UK) LIMITED) |
Claimant |
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- and - |
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THE NATIONAL HEALTH SERVICE LITIGATION AUTHORITY |
Defendant |
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- and – |
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THE NATIONAL HEALTH SERVICE COMMISSIONING BOARD (1) THE SECRETARY OF STATE FOR HEALTH (2) |
Interested Parties |
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Ms Parishil Patel (instructed by NHS Litigation Authority) for the Defendant
Hearing date: 4/05/2016
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Crown Copyright ©
The Honourable Mr Justice Langstaff:
"(1) Regulations must provide for securing that arrangements made by the board under Section 126 will (a) enable persons for whom drugs, medicines or appliances… to receive them from persons with whom such arrangements have been made and (b) ensure the provision of service… by persons with whom such arrangements have been made…
(2) The Regulations must include provision – …
… (b) that an application to the Board for inclusion in a pharmaceutical list must be made in the prescribed manner and must state –
(i) the services which the applicant will undertake to provide and, if they consist of or include the supply of appliances, which appliances he will undertake to supply, and
(ii) the premises from which he will undertake to provide those services,
(c) that, except in prescribed cases… (i) an application for inclusion in a pharmaceutical list by a person not already included, and (ii) an application by a person already included in a pharmaceutical list for inclusion also in respect of services or premises other than those already listed in relation to him may be granted only if the board is satisfied as mentioned in sub-section (2A)…
(2A) The board is satisfied as mentioned in this sub-section if, having regard to the needs statement for the relevant area and to any matters prescribed by the Secretary of State in the Regulations, it is satisfied that to grant the application would -
(a) meet a need in that area for the services or some of the services specified in the application, or
(b) secure improvements, or better access, to pharmaceutical services in that area."
"Section 129(2A) of the 2006 Act (Regulations as to Pharmaceutical Services) does not apply to an application for a person already included in a pharmaceutical list to relocate to different premises in the area of the relevant HWB (HWB1) if –
(a) for the patient groups that are accustomed to accessing pharmaceutical services at the existing premises, the location of the new premises is not significantly less accessible;
(b) in the opinion of the NHSCB, granting the application would not result in a significant change to the arrangements which are in place for the provision of local pharmaceutical services or of pharmaceutical services other than those provided by a person on a dispensing doctor list –
(i) in any part of the area of HWB1, or
(ii) in a controlled locality in the area of a neighbouring HWB, where that controlled locality is within 1.6 kilometres of the premises to which the applicant is seeking to relocate;
(c) the NHSCB is not of the opinion that granting the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area of HWB1;
(d) the services the applicant undertakes to provide at the new premises are the same as the services the applicant has been providing at the existing premises (whether or not, in the case of enhanced services, the NHSCB chooses to commission them); and
(e) the provision of pharmaceutical services will not be interrupted (except for such a period as the NHSCB may for good cause allow)."
The Facts Giving Rise to the Application
"9.55 The Committee was left in some difficulty because, while it had some information about some patient groups, the information available to the Committee clearly referenced the existence of other groups whose access whose access the Committee was not able to assess.
9.56 The Committee had no evidence regarding the accessibility for users of public transport
9.57 The Committee did not have evidence other than anecdotal regarding those who currently accessed the service at the current location and had a disability
9.58 Given the unusual nature of the patient groups, in that the largest identifiable groups were identified by location, that is groups such as shoppers at the Intu and workers at the Intu who would have been travelling to the Intu in any event. Some of those groups such as workers at the Intu could be reasonably assumed to have a starting point at the current location. (sic).
9.59 The Committee was able to draw limited conclusions (set out above) regarding access for the identified patient groups but found it difficult to fully assess the significance of the accessibility for the group it identified as being most likely to be affected by the relocation, that is women aged 18 and seeking the EHC service. The Applicant had not provided any information regarding the numbers using this service or any of the other non-dispensing services and the very low numbers of prescriptions dispensed meant this could have been a large proportion of users of the service affected but the Committee had no evidence either way.
9.60 In the circumstances, the Committee was unable to be satisfied that, for patient groups who are accustomed to accessing the present site, the proposed site is not significantly less accessible.
9.61 The Committee was therefore of the view that condition (a) is not met."
The Challenges to the Decision
"As soon as is practicable (having regard to its functions under Part 2) the NHS CB must give notice of a notifiable application to - … (e) any Local Healthwatch organisation for the area of the relevant HWB and any other patient consumer, or community group in that area which, in the opinion of the NHSB has a significant interest in the outcome of the application" (emphasis added).
Meaning of "patient group": Discussion.
"Any requirements to be met which allow for an excepted application to be made must be construed narrowly otherwise the core requirement of meeting needs etc. assessed in the pharmaceutical needs assessment can be easily avoided. In those circumstances the requirements in Regulation 24(1)(a) should be construed as not being met where a single material patient group may find the location of the new premises significantly less accessible (including – if limited evidence is provided by the applicant about which patient groups actually access pharmaceutical services at the existing premises – a single patient group that appears less likely to be affected, based on what is known about the area in general, including its demography, geography and topography). There is no need… for there to be an assessment of relocation upon different patient groups as a whole and then to reach a balanced decision as to whether, across all patient groups, the new premises is significantly less accessible. There may not be more than one particular patient group which is affected."
"discussed EHC in the round when making our determination, including sign-posting and advice about EHC, which the Superdrug pharmacy was approved to provide, and which we thought young women would be more likely to take up in Superdrug than in the new proposed pharmacy site, because they were likely to be in the Superdrug shopping for other items. Certainly, I would expect a pharmacist to give advice about EHC, include sign-posting a patient to where this can be provided as an NHS service, even if they are not able to provide the product itself. This advice and sign-posting is in itself an NHS pharmaceutical service. It was that which I had in mind. I was aware that provision of EHC in a private capacity was not of itself, a pharmaceutical service for our purposes."
Fiona Castle made the same point at paragraph 15 of her witness statement.
Discretion
"It is well settled that "the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary" (Lord Roskill in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 656.) But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it. So in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 it was conceded, and the House decided, that the Court of Appeal had been wrong to refuse to quash a planning permission granted without the impact assessment required by the EIA directive on the ground only that the outcome was bound to have been the same"
i) It was a Scottish case, and does not appear to have been followed in any English Authority;
ii) It has been cited in subsequent Scottish cases but not followed;
iii) The new point was not taken at first instance but only before the appeal court and, even then, only during speeches;
iv) The fact that the point was new was only a relatively small part of the reason for refusing relief. The main reasons appear to have substantial delay on the part of the petitioner (which does not apply here) and the fact that the court could not formulate appropriate relief based on the petitioner's complaint (which again does not apply here);
v) It was decided prior to Edwards which set out the general principle to be followed in such cases.