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The last time community pharmacy took a government to court, it put the sector into static funding for the next decade. So, serious thought needs to given before we take legal action again, says Nick Kaye…

As I write this, I am sat in an airport after leaving work in my Isle of Man pharmacy to head back to Cornwall for an LPC meeting.

In the Isle of Man, the head of the health service Teresa Cope has resigned and the TV in the airport at Ronaldsway is running with the fact that Wes Streeting has resigned as health secretary.

It seems that wherever you turn, and whichever health system you work in, turmoil and uncertainty seems to be everywhere.

This is important especially for those of us who work within businesses that are primarily funded by activity that is paid for by the Government as we do in community pharmacy. A change of leadership will mean delays in sign-off to contracts and funding decisions. 

In England, we are now nearly six weeks out of contract and quite righty, we are feeling that any benefit from the uplift of last year has well and truly run out.

It is fine for those in power to say it all ok that deals can be backdated, but we are all needing the cashflow now. Wage and national insurance rises as well as rate changes are not being delayed and there is no way to pass these costs on to our biggest customer, the NHS.

This climate of pressure and uncertainly causes us not only to be anxious but frustrated and angry and wanting to act.

I have said many times before having led the National Pharmacy Association (NPA) with a great team and board to the brink of collective action, which I believe helped to secure last year’s funding settlement of 19.1 per cent, I more than most understand that frustration and how it feels.

I was also on the NPA board when the last judicial review took place, and yes, my name is on that too! I strongly believe as a sector, no option should be off the table but the right strategy needs to be deployed at the right time and calm heads are called for in these high-pressure moments. Escalation can be easy when passion and frustration bubbes over.

Legal action puts you in a very difficult situation with the government

My personal reflection, having been part of both processes, is that a judicial review can only be deployed on a point of process not because we don’t like the outcome of a decision.

So, in 2016, the grounds were essentially about how the decision to cut funding was reached rather than the cut itself: that the consultation with the sector had been inadequate and unfair.

It was about how the secretary of state failed to have proper regard to the public sector equality duty under section 149 of the Equality Act 2010 (i.e. the impact on elderly, disabled and deprived communities who rely most on local pharmacies), and that he hadn't properly considered the impact on health inequalities.

The case was heard in the High Court and the judgment came down in May 2017. Mr Justice Collins dismissed both challenges, finding the secretary of state had discharged his consultation and equality duties, although he was notably critical of aspects of how the Department of Health and Social Care had gone about it.

This is key. If a judicial review was to be taken, it would have to be after a contract decision had been made. Although last time round we had short-term success, my personal view is this put us into static funding for the next decade and serious thought would have to be given before taking on legal action again.

To this point, any legal action then puts you in a very difficult situation with the Government, which is why we need to think very carefully about a legal challenge to dispensing at a loss.

However, we all know it happens for individual molecules and the government will say that margin is over delivered and, therefore, they are not in breach of the contract. I am not a lawyer and maybe there can be a different viewpoint.

So, in all this turmoil, we must keep every option on the table, hope negations conclude quickly and they continue to close the gap in funding as highlighted by the independent economic review.

Anything less than 8.9 per cent will be a real-terms cut. Clarity cannot come soon enough for all of us as we need a funding uplift now.

Nick Kaye is a National Association Board member and pharmacist based in Newquay. These are his personal views.