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Judicial review

Legal challenge to funding cuts is only the beginning

Ian Strachan from the National Pharmacy Association explains why pharmacists should not be disheartened by the High Court’s ruling on the judicial review against the funding cuts to community pharmacy in England.

Legal scales between domino pieces

Source: Brain light / Alamy Stock Photo

On 18 May 2017, Justice Collins ruled that he cannot quash the government’s decision to make funding cuts to the community pharmacy sector in England (Pharmaceutical Journal 2017;298:267).

The legal challenges are neither the start, nor the end, of the campaign to secure the future of local pharmacies. We are, in fact, engaged in a long-term battle for hearts and minds — within the sector, the wider health service, the government and society at large.

Nevertheless, the High Court process and the verdict handed down by Judge Collins are significant in a number of important respects.

The judgment sets important standards in terms of our own sector and far beyond. For example, it established in law a new principle that the Health Secretary must have serious regard to the duty to reduce health inequalities when making decisions about the NHS.

Furthermore, the judge put on the legal record that community pharmacies do far more than dispense medicines — so ministers and officials will no longer be able to use the misleading statement that “we spend £2.8bn dispensing around £7.2bn of drugs”. You may recall that this calculation was cited by the chancellor of the exchequer in correspondence with the prime minister in August 2016 and by the NHS chief executive in front of the parliamentary Public Accounts Committee.

Judge Collins predicted hardship in deprived areas as a result of the cuts and said that criticism of the Department of Health’s “less than satisfactory approach” is justified.

Vindication

Overall, the National Pharmacy Association (NPA) and Pharmaceutical Services Negotiating Committee (PSNC) believe that we have been vindicated in relation to many of the arguments we put to the court and won the key points of principle, which ultimately could prove to be highly significant. After all, a High Court judge has effectively said that the government cannot continue to behave as it has been since December 2015.

Clearly, there could be legal and political consequences if ministers ignore that judgment. They have been told to be straight with people about their true intentions; they have been told to take their obligations to people in deprived communities seriously; they have been told to use accurate information when making decisions; and they have been told to recognise the wider role of community pharmacy beyond dispensing.

There is a lot that should change as a result of the judgment

So, there is a lot that should change as a result of the judgment. The consequences of those changes will not be seen immediately on the ground but, ultimately, they could be far-reaching and have a strong bearing on the future of the sector.

Some people have said to me that ‘jam tomorrow’ is all well and good, but the cuts are hurting right here and now. That view is completely understandable. I am feeling the pain in my own pharmacies. Of course, the ideal outcome would have included a reversal of the cuts for 2016–2018, although we always understood that is a high bar to jump in a court of law.

Government should seize opportunity to change course

Even so, it is also important to take the long view. You only have to imagine what the position would be now had we simply rolled over at the start of all this and accepted the cuts and the broad policy towards community pharmacy. We would be seen as a soft touch and the Treasury would be back for more, and more, and more. Meanwhile, the judge’s stinging criticism of the government’s approach gives more weight to calls for a change of course. The NPA has always said that the issue at hand is not just the funding cuts imposed in the current period, it is about the direction of travel and the current direction must now be in serious doubt.

This is a watershed moment for pharmacy policy. The flaws in the current Treasury-led approach have been exposed

This is in fact a watershed moment for pharmacy policy. The flaws in the current Treasury-led approach have been exposed. We can now focus on changing the direction of policy going forward, and put the matter of the current funding settlement in its proper context. The way is now open for talks about a radically different approach — which sees pharmacies as a solution to longstanding NHS pressures, in deprived neighbourhoods and elsewhere.

As a result of the general election, we are to have a new pharmacy minister, which is yet another opportunity for fresh thinking in government about pharmacy policy. This is certainly a change moment for pharmacy, coming on the back of a High Court verdict that made it clear things cannot go on as before. The government should seize this opportunity to change course.

It is the nature of our adversarial legal system that it pits ‘us’ against ‘them’. It is a great shame that we were driven to enter into this confrontational process by the intransigence of ministers and officials in the face of widespread public concern about the approach they are taking to the vital frontline service provided by local pharmacies.

The court case flushed out into the open fundamental characteristics of the current situation, and now an opportunity exists for a genuine, honest conversation about the way forward, and for trust to be rebuilt. It is time for conflict to come to an end and for co-operation to begin.

Time to engage

We want to engage with officials on implementing a programme for change and improvement which builds on the strengths of our sector rather than seeks to dismantle it. By working together, we can make pharmacy and the health system overall even more efficient, while ensuring that no patient is left behind.

Let us take the pledge made in the Conservative Party manifesto as the basis for a new, more constructive dialogue — namely, ‘We shall support more integrated working, including ensuring community pharmacies can play a stronger role to keep people healthy outside hospital within the wider health system’. It is certainly true that what happens in hospitals and general practice impacts on the care provided in your local pharmacy, and vice versa. It is therefore essential that care pathways are looked at from end to end, recognising that pharmacies are the best first port of call for the vast majority of health concerns, an important public health asset and a resource for independent living in the community.

The scale of the opportunity is beginning to dawn on some senior health service figures, such as Richard Murray of the King’s Fund think tank. He called for national roll-out of pharmacy-based minor ailments services by April 2018, and wants full clinical medicines reviews to take place in pharmacies, including ongoing monitoring and follow-up of patients and pharmacist prescribing. This is certainly not the limit of what our sector is capable of delivering for people with long-term conditions, for vulnerable older people and for the NHS as a whole.

It is essential that care pathways are looked at from end to end, recognising that pharmacies are the best first port of call for the vast majority of health concerns

Fundamental strengths

At an NPA member forum in Scotland this month, I was once again reminded of the transformational potential of our sector. The Inverclyde Pharmacy First pilot is testing universal access to the minor ailments service in 19 pharmacies and extending the scope to include treatment for impetigo and shingles, and uncomplicated urinary tract infections in women aged 16–60.

This kind of development makes sense. In fact, community pharmacy makes sense. That is why, even given the current crushing pressures on funding in England, I remain confident about the long-term future of the sector across the whole of the UK. The basic propositions about community pharmacy’s potential are too compelling to be ignored forever — especially in the emerging context of the crisis in general practice. The community pharmacy sector has fundamental strengths, which I believe will assert themselves despite the immense pressures: pharmacies unify the premises, the pharmacy team and the business thereby maximising access, continuity of care and sustainable development of services over time. Furthermore, many health interventions are built on the back of the medicines supply function meaning safe, efficient delivery of services in the community, when and where the patient needs them.

So, I am confident that the pharmacy network will continue to be at the core of pharmaceutical care in the community long into the future — provided that we all get behind fundamental principles laid out recently by the NPA in our ‘statement of core beliefs’. If we cannot, as a sector, rally around the same core beliefs, a sustainable future cannot be guaranteed. Please note that the core beliefs are not a replacement for the ‘Community pharmacy forward view’ — a vision document on the future of community pharmacy by Pharmacy Voice and the PSNC, supported by the English Pharmacy Board of the Royal Pharmaceutical Society — which provides a useful framework for the broad aspirations of the sector in England.

Instead of seeing pharmacies as a cost burden, the government and senior NHS managers should think more radically about the transformational potential of this uniquely accessible asset on the health service front line. Where else in the health service can you simply walk in off the street and get advice from a highly qualified professional within minutes?

With consistent support, pharmacies can do much more to take pressure off GPs and hospitals, make access to NHS care more convenient, help people with long-term conditions, tackle medicines waste and save the NHS money, reduce health inequalities and become the front door to health in the UK.

Instead of seeing pharmacies as a cost burden, the government and senior NHS managers should think more radically about the transformational potential of this uniquely accessible asset on the health service front line

Playing our part

Politicians must now make good on the promises they have made to the electorate about supporting pharmacies. For our part, as pharmacy leaders, we need to build a sustainable coalition of support behind a positive agenda for investment in services that meet identified patient needs and address NHS priorities. On the ground, despite the pressures, pharmacies must continue to deliver excellent patient care if we are to retain the public trust that is fundamental to our strength as a political lobby.

Ian Strachan is chairman of the National Pharmacy Association, the trade association for independent community pharmacy professionals in the UK

Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2017.20202961

Readers' comments (1)

  • Superb article. We have the leaders and the profession needs to follow them, up the game and win the arguments by example. Rhetoric alone isn't enough. Helping keep people out of hospital isn't about healthy living pharmacy displays and exercise challenges. It's playing a part in the screening diagnosing and treatment of illness, managing emergencies and minor ailments. Doctors can then treat people they would previously have sent to hospital. Apart from the cost savings ( which will more than pay for our contribution) Hospitals will become more specialist and centres of excellence. For this to happen, ordinary pharmacists must acquire the skills and use them.

    The time for talking is over. This is a fight we can't afford to lose but it's a struggle in which actions are the weapons, not lawyers.

    Well said Ian Strachan. Who is with him?

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