Tarves Health Limited For Judicial Review Of A Decision Of Grampian Health Board
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2014] CSOH 138 |
| Year | 2014 |
| Published date | 09 September 2014 |
| Date | 09 September 2014 |
| Court | Court of Session |
| Docket Number | P115/14 |
OUTER HOUSE, COURT OF SESSION
[2014] CSOH 138
P115/14
OPINION OF LORD DOHERTY
In the Petition of
TARVES HEALTH LIMITED
Petitioner;
for
Judicial Review of a decision of Grampian Health Board dated 4 December 2012
Pursuer: Lindsay QC; Dundas & Wilson CS LLP
Defender: Ellis QC; NHS Central Legal Office
9 September 2014
Introduction
[1] The respondents are Grampian Health Board. Since 15 June 2010 a pharmacy at 8 Duthie Road, Tarves, Aberdeenshire been included in the pharmaceutical list prepared by the respondents. The pharmacy began trading in December 2010. The petitioners are the pharmacy owners.
[2] The National Health Service (Scotland) Act 1978 (“the 1978 Act”), section 28(1) provides:
“28.— Persons authorised to provide pharmaceutical services.
(1) Except as may be provided by or under regulations, no arrangements shall be made by a Health Board with a medical practitioner or dental practitioner under which he is required or agrees to provide pharmaceutical services to any person to whom he is rendering primary medical services under Part 1 or general dental services.…”
[3] The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004 (“the 2004 Regulation”), Schedule 5, Part 3, paragraph 44 provides:
“(1) A contractor may secure the provision of dispensing services to its registered patients only if it is authorised or required to do so by the Health Board in accordance with this paragraph.
(2) Where the Health Board is satisfied, after consultation with the area pharmaceutical committee, that a person, by reason of –
(a) distance;
(b) inadequacy of means of communication; or
(c) other exceptional circumstances,
will have serious difficulty in obtaining from a pharmacist any drugs, medicines or appliances, other than scheduled drugs, required for that person’s treatment, the Health Board shall require or authorise the contractor with whom the person is a registered patient to supply such drugs, medicines and appliances to that person until further notice…”
[4] In this petition the petitioners challenge the legality of the respondents’ decision of 4 December 2012 authorising Haddo Medical Group (“HMG”) to provide dispensing services to all its registered patients residing in the communities of Methlick and Pitmedden.
Background
[5] HMG operates a main surgery practice in Pitmedden and a satellite surgery in Methlick. Until 7 September 2012 it also operated a satellite surgery in Tarves. Pitmedden is approximately 3.2 miles from Tarves, and Methlick is approximately 4.9 miles from Tarves. Neither Pitmedden nor Methlick has a pharmacy.
[6] On 9 December 2010 the respondents’ Pharmacy Practices Committee (“PPC”) refused an application by another pharmacy operator to be included in the respondents’ pharmaceutical list (prepared in terms of the National Health Service (Pharmaceutical Services (Scotland) Regulations 2009, regulation 5) in respect of premises in Pitmedden. It unanimously held that the existing provision of pharmaceutical services in the neighbourhood of Pitmedden was adequate. On 21 April 2011 the National Appeal Panel dismissed the appeal against that refusal.
[7] Prior to the opening of the pharmacy in Tarves HMG were required and authorised by the respondents in terms of paragraph 44 to provide dispensing services to its registered patients at each of its three surgeries.
The first review
[8] As a result of the opening of the Tarves pharmacy the respondents decided to review the existing paragraph 44 requirement and authorisation. They constituted the Dispensing Doctor Decision Making Group (“DDDMG”) and asked it to consider whether HMG should be authorised to continue dispensing to any patients in the Tarves, Pitmedden and Methlick areas. The DDDMG allowed a 60 day period for consultation. Interested parties, including the petitioners’ predecessors as owners of the pharmacy, made submissions. On 24 January 2012 the DDDMG reported to the respondents. It concluded that patients in Methlick continued to have serious difficulty in obtaining drugs, medicines or appliances from a pharmacist because of poor communication and transport links with Tarves; but that patients in Pitmedden and Tarves no longer had serious difficulty in accessing a pharmacist. It recommended that from January 2013 dispensing should cease to all patients registered with HMG except those residing in Methlick. On 3 April 2012 the respondents accepted the DDDMG’s recommendation. They restricted the paragraph 44 authorisation to those of HMG’s patients registered as living in the community of Methlick. Dispensing to residents in Tarves was to cease almost immediately. Dispensing to residents of Pitmedden was to be permitted only for a further 12 months.
The closure announcement and the local campaign
[9] In August 2012 HMG announced that it planned to close its Tarves surgery. HMG maintained that without the profit generated from dispensing at Pitmedden and Tarves the Tarves surgery was not viable. A local campaign began to try to save the Tarves surgery and to retain dispensing at Pitmedden. The respondents agreed to ask a review panel “to review the outcome and recommendations” of the DDDMG. The panel chairman was an employee of the respondents. In the review panel’s report (6/11, page 5) it summarised the circumstances leading up to its appointment as follows:
“A meeting in September 2012, which was hosted by the Rt Hon Alex Salmond MSP and First Minister for Scotland with representatives of NHS Grampian, the community councils and the local community focused on concerns of some of those present that the Board had failed to assess serious difficulty of access appropriately and that circumstances had changed since the decision to restrict dispensing was made. NHS Grampian agreed to work with representatives of the community, Community Councils and other interested stakeholders to clarify issues raised at the meeting. NHS Grampian agreed that the concerns raised at the meeting justified a review of the decision …
NHS Grampian held a further meeting with the Rt Hon Alex Salmond MSP and representatives of the community councils in October 2012 to support the community councils in clarifying their challenge to the NHS Grampian decision to restrict dispensing by the Haddo Medical Group …”
The second review
[10] The review panel received written submissions from two MSPs and detailed written submissions (7/22) from Udny and Tarves Community Councils. The community councils’ submissions incorporated findings from, and analysis based on, a survey carried by them. The submissions narrated (page 3):
“Residents who have their own vehicles are not considered to be in serious difficulty. They are able to visit the doctors in Pitmedden, drive three miles to Tarves to collect their prescription and drive three return miles. This is inconvenient, but does not constitute serious difficulty.”
The submissions went on to state that while 58% of relevant residents always had access to a car, 28% had limited access to a car and 14% had no access (7/22, Appendix B). They contained new and detailed “realistic assessment” journey times for those using public transport to visit the petitioners’ pharmacy. They contended that of those dependent on public transport 52% to 81% would take more than 2 hours to see a doctor in Pitmedden, travel to the pharmacy, obtain the prescription and return to Pitmedden (7/22, page 4). The panel also had access to the information which the DDDMG had had at the time of the first review.
[11] On 21 November 2012 the respondents’ Director of Pharmacy and Medicines Management telephoned Mrs Craig of the petitioners asking for details of the petitioners’ collection and delivery service. Mrs Craig’s clear recollection is that the Director indicated something was about to happen, but that he did not indicate what it was. The Director concerned has no clear recollection of the conversation. He sent a follow-up email. Ms Craig replied to it in the following terms:
“Tarves Pharmacy currently collects prescriptions every day from Pitmedden Surgery at 8.30am and 4pm. These prescriptions are then dispensed by qualified staff in the Pharmacy ready for collection or delivery on the same day.
We offer a free delivery service with no restrictions in regard to age, mobility, location or frequency of deliveries. This ensures that our patients in Tarves, Pitmedden, Methlick and the surrounding areas have NO SERIOUS DIFFICULTY or INCONVENIENCE in accessing their medication from a Pharmacy.
We currently deliver to a number of patients in Tarves, Barthol Chapel, Pitmedden and Udny Green on a regular basis. …
With regard to Pitmedden itself, we already visit the village at least twice a day and cater for patients who have specific delivery needs. There will be no issue with extending the delivery service provided. For example we have several patients who are housebound and require their medication to be delivered at a specific time of day to fit around when they have a carer or family member present who can answer the door.
I can assure you that Tarves Pharmacy will continue to offer this level of service on a daily basis in the future. While this is not a service we are contracted to provide, it is common with most Pharmacies. Given our rural location it is a necessity for our patients that we will ALWAYS be willing to provide…”
[12] On 22 November 2012 the review panel heard a presentation from the community councils in support of their written submissions, and representatives of the councils answered questions which the panel had. The panel’s report (6/11 of process) concluded:
“Although the Review Panel was presented with considerable information there was one over-riding new analysis of information presented on behalf of the Community Councils which, the panel believe, demonstrated serious difficulty by reason of inadequacy of means of...
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