R (on the application of Community Pharmacies (UK) Ltd) v The National Health Service Litigation Authority The National Health Service Commissioning Board and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Langstaff |
| Judgment Date | 01 July 2016 |
| Neutral Citation | [2016] EWHC 1595 (QB) |
| Docket Number | Case No: CO/6383/2015 |
| Court | Queen's Bench Division |
| Date | 01 July 2016 |
[2016] EWHC 1595 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Langstaff
Case No: CO/6383/2015
and
Mr David Lock QC (instructed by Lockharts) for the Claimant
Ms Parishil Patel (instructed by NHS Litigation Authority) for the Defendant
Hearing date: 4/05/2016
Part 7 of the National Health Service Act 2006 provides for the provision of pharmaceutical services. Sections 126(1) and (3) provide that the National Health Service Commissioning Board must make arrangements for the provision to persons in England of proper and sufficient drugs and medicines and listed appliances ordered for those persons by a medical practitioner in pursuance of his functions in the National Health Service.
The scheme under which these arrangements are made (the arrangements themselves being effected by the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 ( SI 2013/349: "the 2013 Regulations")) is further provided for by primary legislation. Section 128A of the National Health Service Act 2006 provides that each Health and Wellbeing Board ("HWB") must assess the need for pharmaceutical services in its area and publish a statement of its assessment and any revision of it. Section 129, headed "Regulations as to Pharmaceutical Services" provides, so far as material to the present case:-
"(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."
The broad sense of these provisions is that an application to open a new pharmacy in any particular area must be shown, by reference to a patient needs' assessment, to meet a need for pharmaceutical services or secure improvements or better access to those services already provided. Such an application is known as "a routine application".
Section 129(2)(c) recognises that there may be exceptional cases for which provision will be made by Regulations: "exceptional applications".
The 2013 Regulations provide by Regulation 24 that the relocation of pharmacies which "do not result in significant change to pharmaceutical provision" is one such exceptional case. Regulation 24 provides by paragraph 1:
"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
In Derby, there is a city centre shopping centre known as the Intu. Within it, Superdrug operates a pharmacy. The Claimant applied to take over ownership of that pharmacy – that in itself has not been controversial – and to relocate it – that has been. It wished to move the pharmacy so as to operate it in a large surgery at 11 Wilson Street, which is outside the city centre, nearly 600 metres from Superdrug's premises in the Intu. The relocation required the approval of the NHSCB. It was refused. The Claimant appealed to the Secretary of State as it was entitled to do. The Secretary of State has provided for an appeal structure under which appeals to him are brought before the Family Health Service Appeal Unit of the NHSLA (the "FHSAU"). The Regulations provide for some flexibility in procedure: the appeal panel convened by the FHSAU in the present case decided to hold an oral hearing. It was chaired by Linda Lee (a former president of the Law Society) and had as its other two members Fiona Castle, a qualified pharmacist, and Paul Chapman, a lay person. It heard evidence and took representations from those with an interest in the decision. For reasons stated in a decision dated 1 st May 2015, the Committee decided it was not satisfied that the location was not significantly less accessible, and therefore Regulation 24(1)(a) was not satisfied.
It considered (paragraph 9.27) that it had to seek to identify the patient groups which potentially would be affected by the relocation, based upon the information provided by the parties. The Claimant identified two patient groups: shoppers at the Intu, and workers at the Intu, and said that all other patient groups were merely sub-sets of those two main groups (paragraph 9.28.1.3). The Committee thought it likeliest that the larger group accessing pharmaceutical services would be shoppers. It was accepted, as fact, that they would have access to the Intu on foot, by public transport or by car, though there was no agreement as to the proportions using any particular method of travel (paragraph 9.30).
Interested parties raised the suggestion that disabled patients would access certain services at Intu, and given the demographic of Superdrug customers (tending to be younger, and more likely to be women than other outlets) suggested it was likely that there would be a number of young women, aged over 18, seeking contraceptive advice.
In the light of these submissions, at paragraph 9.37 the Committee – adopting the approach it had set out at 9.27 — identified the patient groups of those attending as comprising workers at the Intu, shoppers travelling to the Intu by foot, shoppers travelling to the Intu by public transport, shoppers travelling to the Intu by car, disabled patients, women aged 18 and over seeking EHC (emergency hormonal contraception), and patients seeking pharmaceutical services other than EHC. It then examined each of those seven categories in turn.
From the decision it is clear that particular features of the new location were that it was outside the city centre, and the approach to it was not under cover, such that it was not protected against inclement weather: this contrasted with the approach to Superdrug. The routes from Intu to Wilson Street involved travelling a distance of some 590 metres, up an incline. A principal route ran past Milestone House, which attracted numbers of those seeking shelter for the night, who might be suffering from drug and alcohol problems and might indulge in anti-social behaviour and begging. There was dedicated car parking at the surgery; those travelling by bus on "A routes" could get off the bus on their way to the bus station in order to access that surgery, before walking into Intu, whereas those on "B" and "C" routes might have more difficulty.
The Committee thought it unlikely that the disabled patient group was significant in number, though it was also unlikely that it consisted only of one as the Claimant suggested, and for those with mobility difficulties the incline would render the new site less accessible.
Taking these matters into account, against what it complained was a relative paucity of evidence, the Committee expressed its overall assessment in six paragraphs central to its decision as follows:
"9.55...
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