High Court issues first ruling on “necessary and desirable” test
The Royal Courts of Justice, where the High Court heard the legal
challenge |
Guidance on how primary care trusts in England should interpret the
introduction of a consumer choice element to the “necessary or desirable” test
for new pharmacy contracts has been given for the first time by the High
Court.
The additional test was introduced in 2005 as a result of an Office
of Fair Trading competition investigation into NHS pharmacy services.
The
OFT’s finding that Regulations at the time restricted competition
were largely accepted by the Department of Health, but were rejected
in their totality by the National Assembly for Wales and the Scottish
Government.
In the first legal challenge to the way PCTs and the NHS Litigation Authority’s
family health services appeals unit (FHSAU) interpret the new provision,
Assura Pharmacy has succeeded
in using the new choice provision to overturn
one FHSAU ruling that it should not be awarded an NHS contract (PJ,
26 January 2008, p77). Two other FHSAU rulings unfavourable to Assura
were upheld.
Overturning decisions of Fylde PCT and the FHSAU that Assura should not
get a contract at Freckleton, Lancashire, because pharmacy services were
already “totally adequate” even though the area had only
one pharmacy, Judge Gary Hickinbottom said that a pharmacy appeals committee
had failed to engage with the issue of whether there was sufficient choice
in the locality.
Giving his ruling, the judge identified three guiding principles related
to choice that should be applied by PCTs when assessing contract applications
(see Panel).
Nick Wardle, a Charles Russell solicitor involved in the case, said: “This
is an important decision which gives guidance as to how PCTs and the
appeals unit should approach the question of choice. If there is no pharmacy
or only one pharmacy in a neighbourhood there can be no reasonable choice,
but this is just one of the factors that the PCT must take into account.
Even in the absence of choice the PCT may, on the facts before it, still
consider that a new application should not be granted.”
Choice in pharmacy services
The High Court has outlined three principles to
be considered by primary care trusts when deciding whether a new
pharmacy contract
should be granted on choice grounds:
• PCTs must consider whether
recipients of pharmaceutical services have a reasonable choice
of services and service providers as part
of a wider assessment of adequacy, but should not place any particular
emphasis on the question of choice.
• If there is only one pharmacy in a neighbourhood, there is
no choice of services, but this does not necessarily mean that
a new
contract should be granted, for example, if services are adequate
in all other respects.
• Where there is more than one pharmacy in the neighbourhood,
but all pharmacies are owned by the same company, there is no
choice
of service provider, but again this does not necessarily lead
to a conclusion that an application by a new pharmacy company
must
be granted. |
|
The
Pharmaceutical Journal
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