‘Fag packet approach’ to pharmacy cuts ‘plainly wrong’, court hears
The lawyer representing the Pharmaceutical Services Negotiating Committee (PSNC) in the High Court appeal against the pharmacy funding cuts has attacked the government’s “fag packet approach”.
Alison Foster QC once again criticised the Department of Health and Social Care’s (DH) strategy during the first day of PSNC’s and the National Pharmacy Association’s (NPA) appeal against a High Court judge’s decision last year to uphold the pharmacy funding cuts.
More precise information should have been required on the possible impact of the DH’s decision to cut 12% from the pharmacy budget in England before the cut was imposed, she argued in the Royal Courts of Justice today (May 22).
PSNC launched its legal challenge against the funding cuts in December 2016, on the basis that the DH “failed to carry out a lawful consultation” on its proposals for the sector.
In his dismissal of the case – handed down on May 18, 2017 – Judge Justice Collins said while the DH’s consultation process was “unfair”, it was not “unlawful”.
On granting PSNC the right to appeal his decision last year, the judge acknowledged that the DH had failed to disclose its use of a Companies House analysis that showed community pharmacies have an operating margin of 15%.
Today in the High Court, Ms Foster accepted the DH did some analysis of the sector before implementing the cuts. However, its evidence was unreliable, she claimed.
Ms Foster argued there is a logical inconsistency at the heart of the DH’s decision and the steps taken to implement the funding cuts were “wholly wrong”.
Judges’ response
Lord Justice Gary Hickinbottom – one of three judges presiding over the appeal – argued the process the DH undertook when making its decision with the information it had seen was “legally fine”.
In his reporting from the proceedings, C+D’s digital reporter Thomas Cox said the judges seemed sceptical that the DH did not use enough information before deciding to cut the sector’s funding.
For the full details of the first day of the High Court pharmacy funding cuts appeal, see below.
C+D digital reporter Thomas Cox (@CandDThomas) will be reporting live from the court for the duration of the appeal. Keep an eye on the C+D website for updates and follow the action in real-time on Twitter using the hashtag #CutsInCourt
Below is C+D's live coverage from the first day (May 22) of the pharmacy funding cuts appeal case in the High Court in London. Read here for information on all the key players, and to see how the sector got to this point, read our summary here.
Follow @CandDThomas for real-time updates on Twitter, or catch up on all the coverage from last year’s hearing here.
For reference, 'SI' is Lord Justice Stephen Irwin, 'GH' is Lord Justice Gary Hickinbottom, 'JB' refers to Sir Jack Beatson. PSNC's lawyer is 'AF', Alison Foster QC, the NPA's lawyer is 'DL', David Lock QC and the DH's lawyer is 'JE', James Eadie QC.
The NPA’s Stephen Fishwick gives his take on today’s events
C+D digital reporter Thomas Cox rounds up today's events
You’re right Ben. You’d have to question the process involved in arriving at the decision as it appeared very flawed, but would be astounded if the decision gets overturned.
— Allisons Chemist (@AllisonsChemist) May 22, 2018
IMO, problem is although cuts were wrong, unfair, unreasonable & reckless they weren't illegal, judge in original appeal sounded like he agreed but couldn't find legal opposition. We need to hope that @NPA1921 and @PSNCNews convince judges of illegality
— Ben Merriman (@blmerriman) May 22, 2018
That’s all in court until tomorrow, when we will hear JE fighting appeal for DH and Sec of State. I will be summarising today on Facebook soon and we may have some @NPA1921 insight 👀 #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Phas provides services across a footprint maintaining universal service but that does nothing for atypical patient. It's about need to design services to reduce inequality of benefit #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: These services are of vital improtance in reducing differential benefit from services. SI: It's exclusion of services from impact assessment #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Pharmacists do much more than deliver medicines #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Error of Sec of State was there was no assessment on whether consequences of fee cuts would reduce existing inequality of access #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
SI: A cluster doesn't prove or disprove need for services. DL: That was point I was going to make. There is no assessment as to what is likely to happen and whether the need will be met. SI: That means inequality piggybacks on closures question #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Universal services are widening health inequalities. What has happened in this case is Sec of State has made an assumption that cluster of services does not necessarily indicate a need #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Figures for health inequality in this country are stark. A substantial change in mindset is needed. #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
GH: Money released from cuts could be used elsewhere in health service - but you (DL) are saying Sec of State should have considered effect on those using c pharmacy services? DL: Precisely #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Must understand impact on patients who have had services removed - the negative consequences. The way that you remove money from budget is absolutely crucial. Assessment to how people assess access services should be essential building block of lawful decision #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
3 - Having understood steps, weigh those options with other counterveiling factors in coming to final decision #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: 3 stages of assessing Sec of State duty. 1 - understand factors that lead to inequalities of benefit from service delivery. 2 - explore what steps could be taken to reduce existing and future inequalities in pharmacy services. #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL referring to another case: In order to make lawful decision - due regard of equality - have to do analysis first; but if does not do then decision is unlawful. Whether Sec of State has abided by duty should be seen from service user perspective #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Yes - he said prescribing but I believe meant dispensing
— Thomas Cox (@ThomasBioPulse) May 22, 2018
JB: Can't be for as many people as possible as this is not equalised. DL: Focus is to reduce existing inequality of benefit. Sec of State need to reduce differential benefit #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: There is ample evidence in difference in way groups access universal services. Particularly for homeless. Duty of DH focuses on method not outcome of cuts decision. @NHSEngland says services must be accessible by as many people as possible #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: There are health inequalities in the UK. These are major differences - almost 11 years life expectancy between London's boroughs of Chelsea and Tower Hamlets #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Sec of State needs to reduce inequalities in England - not general inequalities - but inequalities with respect to benefits that people can obtain from health service #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: There were assumptions but no assessment [when decision to make cuts was made]. Hypothesis was you need pharmacies wihtin a mile to maintain access -that was untested with no evidence. The right process was not followed here #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Cuts were done without thinking of consequences on services provision. SI: Why should a reduction in pharmacies mean a reduction in services should have been anticipated? DL: Evidence before minister was existing pharmacies working flat out #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
As in all businesses the first things that have to go are the things that cost you money. https://t.co/t20jRYfD1n
— Allisons Chemist (@AllisonsChemist) May 22, 2018
DL: It is not my case that cuts are unlawful, but that decision did not follow statutory procedure. SI: This is retrospective, different from saying loss of services was to be expected. DL: Cuts were not done with proper understanding of effects #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: Mr Jepsom runs 3 pharmacies. Since cuts he's seen reductions - in opening hours, in number of pharmacicsts available to give advice on services, in time to give services, also removal of free delivery service + free dosset #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL: pharmacy services is particularly imporant in deprived communities, as "deprived community, fewer GPs, more pharmacies" #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL @NPA lists "essential services" offered by pharmacies including dealing with unwanted drugs, urgent meds supply, signposting, self-care support: "prescribing is only one of the functions that a pharmacy undertakes" #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL @NPA lists "essential services" offered by pharmacies including dealing with unwanted drugs, urgent meds supply, signposting, self-care support: "prescribing is only one of the functions that a pharmacy undertakes" #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL is outlining parts of his argument, including how DH "misunderstood" nature and effect of duty & how NPA believes the judge was wrong #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF has ended with four minutes to spare, having outlined her skeleton argument #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF on point from NICE case: Public interest in what is being negotiated should have an effect on the consultation #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
JB: Are these cases not fundamentally different? #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
SI (on AF argument): This all comes down to you need to know enough about what's proposed to make an informed response #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF on another case on local authority - has to be shown how a decision will fulfil statutory duty #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF in response to JB saying Collins said last yr that Irish case was on different points: I'm not sure I understood JE's points from last time on CPNI case, will wait to see what he says #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF on Irish case considering adjusting drug tariff - there failed to be sufficient assessment to make informed decision. It is "highly material" that court said core info was profit from enterprise that would have economic impact #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF on another case of proposed altered drug tariff in Ireland - judgement said there failed to be fair and reasonable renumeration, with background not dissimilar to this case #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF referring to Irish case: there is an overarching statutory obligation to give pharmacists fair and reasonable renumeration #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
We can all agree that there has been nothing fair and reasonable about remuneration for a while now. https://t.co/zH3EhGdTeM
— Allisons Chemist (@AllisonsChemist) May 22, 2018
AF referring to 1997 regulations - pharmacies should be paid "fair and reasonable renumeration", this is relevant because there have been delays #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: Sec of state has not acquainted himself with material sufficiently #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
We're off in noon session with AF @PSNCNews until 3pm: Did the sec of state take sufficient steps to educate himself correctly? Needs enough reasonable info. Not about fairness, but what is reasonable #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Breaking for lunch now, returning at 1355 #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: For every £1 spent by DH you get 27p of value, according to Ojier review. Services were valued at £3bn #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: The closure of oharmacies would have a great impact on the service provided and the number of pharmacies #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
GH: savings were not closure sensitive? JE agrees #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Correction from mishearing: GH was talking about £113m saving from 2016-17, not £130m https://t.co/sTFthsHj7o
— Thomas Cox (@ThomasBioPulse) May 22, 2018
DL stands up: there must be a figure showing how many pharmacies DH thought would close, to arrive at cuts percentage, but they did not know #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Slow currently due to refinancing of business and personal loans by small independents. How long can this go on for? https://t.co/Wfkww1Rs0D
— Suketu Patel (@PatelSuk) May 22, 2018
GH: minister is saying in documents that closures after cuts may not be very great #cutsincourt. AF: there weren’t proper steps it was “wholly wrong”
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Maybe if you’re a chain and you own the remaining pharmacies!
— Allisons Chemist (@AllisonsChemist) May 22, 2018
How do they figure @DHSCgovuk? #CutsInCourt https://t.co/ay4RuGFEHz
— Lilian Anekwe (@SoMe_Lilian) May 22, 2018
Maybe, in terms of numbers of people coming to their pharmacy. That does not translate into the level of care these patients may get from a pressed and busy pharmacy.
— Kristoffer Stewart (@PharmKristoffer) May 22, 2018
Correct me if I'm wrong but isn't DH supposed to be more concerned with benefits to patients? How is closure beneficial to patients? How will that improve access?
— Tohidul Islam MRPharmS 🇵🇸 (@TohidMPharm) May 22, 2018
AF: it was said “we don’t have a model for the future pharmacy market”, which PSNC took issue with as wanted to know what data was being used #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
On that point, good opp to tweet my analysis: how are the multiples coping with the cuts? https://t.co/vFJfCJPZbW #CutsInCourt https://t.co/CCtccVV8l7
— Lilian Anekwe (@SoMe_Lilian) May 22, 2018
AF: it was suggested there could be between 1,000 and 3,000 closures, depending on multiples’ reaction #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: DH were quite well aware the impact was closures and where they would hit, but they did not know for sure as in future #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF going through figures in detail that she claims show DH did not know enough, that small pharmacies would be disproportionately affected #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: Behind Phas is thoughts pharmacies would close, otherwise why would you do it. It is a “strategic remodelling” #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF:(refers to secrete meeting with insider) “it’s clear that operating profits and market info were known to be in this decision, albeit in this very odd way” #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: this cut would disproportionately affect smaller pharmacies and not multiples. It appeared to those represented by PSNC to be an irreversible step away from c pharmacy based provision - Amazon provision is slang for it #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: “the fag packet approach was plainly wrong”. More precise information is required. Number of factors bearing down economically on smaller pharmacies: Volume of prescriptions have gone up. Living wage. #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: I’m not attacking his policy that cuts can be made. PSNC made clear they were working to a situation with fewer. But what happened was “wholly insufficient” #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
A good sign for @PSNCNews and @NPA1921's appeal? #CutsInCourt https://t.co/oPD9Jtd5DF
— James Waldron (@JamesPharma) May 22, 2018
All judges seem incredulous that sec of state did not use enough info #CutsInCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
The sector would have been willing to work with @DHSCgovuk on this. Can't deny reality of NHS austerity, but slash and burn, indiscriminate cuts not the way to "do this properly". #CutsInCourt https://t.co/n5uQQ4XxZs
— Lilian Anekwe (@SoMe_Lilian) May 22, 2018
AF: this decision could not have been made within its timeframe without “squeezing the DH from the truth”. There was a way of doing this properly and this was not it #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: Sec of state will initiate what he needs - he has an obligation to inform himself. GH: what sec of state did, making decision with info he had, was “legally fine” #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: PSNC can’t do its job without understanding what DH thinks of sector. You can’t construct a safety net without knowing size of mesh required (on Phas) #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
JE: Ojier report was subject of some uncertainty. This evidence is questionable. (AF does not reply) #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
JB: what is relevance of study by Tim Ojier @PwC If was published after decision for cuts was made? AF: DH said it was too expensive to have such a study before decision. #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: sec of state should consider will sufficient number of pharmacies survive? Will it breach my statutory obligations and cost money rather than save... PSNC said profit is closer to 6 or 7% at most than 15%. Risking will cost public purse rather than save it #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: Irrelevant to say you couldn’t be precise, pharmacy by pharmacy - of course you can’t - but detailed studies of market can take place #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: it’s about integrity of decision making - had to have minimum assessment of impact of decision on pharmacy closures, that he would have objectives. He couldn’t make without some assessment #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
SI: you say there’s a contradiction that decision was not properly informed, when it was in fact informed? Af: yes
— Thomas Cox (@ThomasBioPulse) May 22, 2018
JE combats claim by AF - these figures were not relied upon in decision by sec of state #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: there is a logical inconsistency at the heart of the sec of states case. In truth it is accepted he did have some idea (of impact) - it was wholly unreliable, rough and ready #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: the drug tariff appears to be being used to reshape the sector. DT is there to provide reasonable remuneration. If you are not seeking to provide this but risking cutting out significant portion of that population you are not carrying out DT exercise (properly) #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
GH: so this scheme is procedurally wrong? AF: it ain’t what you do it’s how you propose to do it #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
GH: so this scheme is procedurally wrong? AF: it ain’t what you do it’s how you propose to do it #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: sec of state reached decision without regard of impact of policy. #cutsincourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
The issue with @DHSCgovuk's #pharmacycuts decision in a nutshell #CutsInCourt https://t.co/orp0KVsp0i
— James Waldron (@JamesPharma) May 22, 2018
AF: there is a series of core failures in decision making by sec of state. He failed to equip himself with relevant information for lawful decision making. Goes to heart of coherent decision making. #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
AF: character of many of (pharmacy) businesses is small scale family-run. Over 2,000 pharmacies are not part of a large chain... (summarising cuts) #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Hear, hear. Don't drag it out. Think about our tweeting fingers @ChemistDruggist, please. #CutsInCourt https://t.co/CoU6xg4vZF
— Lilian Anekwe (@SoMe_Lilian) May 22, 2018
SI: It would be helpful if we can do this in 2 days, with appeals today #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Aaaand we're off at the High Court..... @PSNCNews and @NPA1921 appealing the previous rule upholding #pharmacycuts #CutsInCourt https://t.co/idkDdssZIL
— Lilian Anekwe (@SoMe_Lilian) May 22, 2018
Judges due in 1 min: Lord Justice Stephen Irwin, Lord Justice Gary Hickinbottom and Sir Jack Beatson - I’ll refer by name initials #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
In court 68 waiting to begin. QC lawyers Alison Foster, David Lock and James Eadie have taken seats. Also in audience is Sue Sharpe @PSNCNews and @HealthRegLawyer. Much emptier than last time when I couldn’t fit in the room - 19 empty chairs #CutsinCourt
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Lovely sunny day outside Royal Courts of Justice - just under one hour until #CutsinCourt appeal begins pic.twitter.com/tahTQGZowL
— Thomas Cox (@ThomasBioPulse) May 22, 2018
Where: The Royal Courts of Justice, London
When: May 22, 10.30am – with an estimated hearing time of two-and-a-half days
Representatives:
James Eadie QC, Department of Health and Social Care (DH)
Alison Foster QC, Pharmaceutical Services Negotiating Committee (PSNC)
David Lock QC, National Pharmacy Association (NPA)
Find out more about the lawyers battling over the funding cuts in court here.
And the judges?
Lord Justice Stephen Irwin, Lord Justice Gary Hickinbottom and Sir Jack Beatson.
How did we get here? The journey back to the courts
December 1, 2016: PSNC launches a legal challenge to the pharmacy cuts, the day the 12% drop in the sector’s funding in England comes into force.
The negotiator believes the DH “failed to carry out a lawful consultation” on its proposals for the sector.
The NPA is named as an “interested party” in PSNC’s case.
December 13, 2016: The NPA confirms its own “formal launch of High Court proceedings”, on the grounds that the DH failed to consider the impact the funding cut will have on the elderly, the disabled and those from black and ethnic minority communities.
The DH says it does not accept the grounds for a judicial review and aims to persuade the court that the NPA’s case is “without merit”.
March 21-23, 2017: PSNC and NPA outline their cases to Judge Justice Collins at the Royal Courts of Justice.
May 18, 2017: Judge Justice Collins dismisses "with regret" both the NPA's and PSNC's cases.
June 23, 2017: PSNC and NPA given permission to appeal the High Court decision.
May 21, 2018: The day before the appeal hearing is due to begin, NPA vice chair Andrew Lane says: “The High Court judgment vindicated our stance on health inequalities and we now want to see that flow through to a logical and fair conclusion.
“Had the DH properly considered the impact of its cuts, it would have realised that the cuts will ultimately have a disproportionate effect on people living in the most deprived areas of England, where there is already a lack of NHS provision.”
There is “no fixed date” for the verdict, the NPA says, and PSNC stresses “it is not helpful to speculate on what the outcome may be at this stage”.
C+D digital reporter Thomas Cox (@CandDThomas) will be reporting live from the court for the duration of the appeal. Keep an eye on the website for updates and follow the action in real-time on Twitter using the hashtag #CutsInCourt
How is your pharmacy coping with the funding cuts?
As PSNC and the NPA appeal the High Court judge’s decision last year to uphold the pharmacy funding cuts, tell us how your pharmacy is coping.
Leave your comments under the story, or contact C+D anonymously by emailing haveyoursay@chemistanddruggist.co.uk
