R v The Family Health Services Appeal Authority and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay |
| Judgment Date | 20 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0720-14 |
| Docket Number | Case No: C0 4404/97-608/98-609/98 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 1999 |
[1999] EWCA Civ J0720-14
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Maurice Kay
In the matter of an application for Judicial Review
Case No: C0 4404/97-608/98-609/98
Cherie Booth QC and Jane Oldham (instructed by Berwin Leighton) for the Applicant
Monica Carss-Frisk (instructed by The Family Health Services A.A.) for the Respondent
Duncan Ouseley QC and Rabinder Singh (instructed by Charles Russell) for Interested Parties
Michael Fordham (instructed by The Boots Company) for Boots (an Interested Party)
In this case, Tesco Stores Limited ("Tesco") seeks judicial review of three decisions of the Family Health Services Appeal Authority ("the FHSAA"). In each instance Tesco had applied to the relevant health authority for inclusion in the pharmaceutical list maintained by that health authority so as to enable Tesco to act as a dispensary in relation to National Health Service prescriptions. Inclusion on the list is not necessary for the general sale of pharmaceutical products or for the dispensing of private prescriptions but it is necessary for the dispensing of NHS prescriptions. The three applications related to Tesco superstores at Ashford, Bicester and Fulbourn. The applications in respect of Ashford and Bicester were refused by the respective health authorities and Tesco appealed in both cases to the FHSAA. The application in respect of Fulbourn was granted by the health authority but other pharmacists appealed to the FHSAA against the decision. In all three cases the FHSAA decided against Tesco. This precipitated the present applications, in respect of each of which leave to move was granted by Jowitt J.
I refer first to the statutory framework. By section 41 of the National Health Service Act 1977 (as amended by the Health Authorities Act 1995):
"It is the duty of every Health Authority, in accordance with Regulations, to arrange as respects their area for the provision to persons who are in that area of
(a) proper and sufficient drugs and medicines and listed appliances which are ordered for those persons by a medical practitioner in pursuance of his function in the health service….
The services so provided are in this Act referred to as 'pharmaceutical services'."
The section makes comparable provision in relation to drugs and medicines ordered by dental practitioners.
Section 42 provides for the making of Regulations which, by section 42(2), must include provision—
"(a) for the preparation and publication by a Health Authority of one or more lists of persons, other than medical practitioners and dental practitioners, who undertake to provide pharmaceutical services from premises in the Health Authority's area;
(b) that an application to a Health Authority for inclusion in such a list shall be in the prescribed manner…….
(c) that, except in prescribed cases —
(i) an application for inclusion in such a list by a person not already included; and
(ii) an application by a person already included in such a list for inclusion also in respect of services or premises other than those already listed in relation to him,
shall be granted only if the Health Authority is satisfied, in accordance with the Regulations, that it is necessary or desirable to grant it in order to secure in the neighbourhood in which the premises are located the adequate provision by persons included in the list of the services, or some of the services, specified in the application……"
The relevant Regulations are the National Health Service (Pharmaceutical Services) Regulations 1992. Regulation 4 requires Health Authorities (formerly Family Health Service Authorities (FHSAs)) to prepare appropriate pharmaceutical lists of persons, other than doctors and dentists, whose applications in the prescribed form have been granted. By Regulation 4(4), save in circumstances not relevant to the present case,
"An application…..shall be granted by the FHSA 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, of the services, or some of the services, specified in the application."
It is this provision that lies at the heart of the present case. Regulation 6 goes on to provide:
"(1) In considering whether any application to which Regulation 4(4) applies, an FHSA shall have regard in particular to—
(a) whether or not any of the pharmaceutical services specified in the application are already provided by persons included in a pharmaceutical list in the neighbourhood in which the premises named in the application are located;
(b) any information available to the FHSA which, in its opinion, is relevant to the consideration of the application; and
(c)any representations received by the FHSA under Regulation 5( 1) or (2).
(2) The FHSA may determine an application in such manner as it thinks fit and may, if it considers that oral representations are unnecessary, determine the application without hearing any oral representations."
Regulation 8 provides for appeals to the Secretary of State. In reality these have been determined by a Committee of the FHSAA since 1996. There may be an oral hearing but one is not mandatory. The procedure is to be determined by the FHSAA.
In addition to the statutory materials there is also an explanatory memorandum of guidance published by the Secretary of State. It is a lengthy document, the following contents of which are relevant to the present case:
"In 1987, regulations introduced a system of control to limit the number of persons included in a pharmaceutical list as closely as possible to the need of the local population for reasonable access to the full range of NHS pharmaceutical services. At the same time, they were intended to take account of the cost to the taxpayer of providing pharmaceutical services. While there is a need to give existing pharmacies……the opportunity to develop a fully professional NHS service and to respond to changing needs, it is the effect on services to patients and not the effect on other persons included in the pharmaceutical list as such which must be borne in mind. Decisions whether additional services should be provided or additional premises opened should take account of changing circumstances and are based on whether it is necessary or desirable to grant the application to secure an adequate provision of service in the neighbourhood. There are no hard and fast rules or formulae for determining the number and distribution of pharmacies or other premises supplying NHS services. FHSAs should not adopt norms, quotas or national average figures as an absolute guide nor to establish fixed rules as to, say, distance from another pharmacy. Rather each application should be considered on its merits."
Much of this is repeated in the section dealing with the "necessary or desirable" test, where it is also stated:
"Above all FHSAs should adopt a flexible approach. Local needs and circumstances will change over time and the pattern of pharmacy provision must adapt accordingly. These provisions must not be allowed to fix rigidly the pattern of service which already exists nor do they create a closed shop for existing pharmacy contractors."
The document concludes with guidance on the information likely to be needed when considering an application. Information on the following matters is "likely to be helpful":
"1. The pattern of natural communities and the normal patterns of travel.
Primary care services should be provided as part of the normal fabric of people's lives. Where, how often and how easily people travel about the locality in order to go to work, shop, school, visit other health care premises or pursue leisure activities are all important. Reasonable provision has no absolute measure and will depend on what is reasonable in the circumstances. For example, a distance which might be regarded as excessive in some environments would be quite acceptable in others.
2. Existing Patterns
a. The number and location of existing pharmacies and where relevant of GMP practices, the possible effects on the NHS services they provide of granting the application; the range of services provided by existing pharmacies their hours of service and any scope for amendment of those hours of service.
b. The numbers of prescriptions dispensed and, as far as this can be ascertained, their usual sources. To a very considerable extent this will be dependent on the number and location of GMP practices, and the size of their lists. It is common for prescriptions to be dispensed at a distant pharmacy convenient to the patient's home, place of work, shops etc. and this should be borne in mind.
c. Local demography, especially the presence of any group including ethnic groups, and any groups who make above average of primary care services or may have special needs; seasonal trends.
d. Ease of access. Distances between home, pharmacy and surgery are highly relevant but should not be taken alone. Regard should be had to acceptable travelling distances within the local environment, the availability of public transport, whether most people are likely to be pedestrians or to have the use of a car (bearing in mind that elderly persons are one of the major categories of pharmacy users) and the features of local geography including natural or man made barriers.
e. Evidence of local deficiencies in the service, for example complaints known to have...
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