Consultation

May 19th, 2017

In R (Pharmaceutical Services Negotiating Committee) v SoS for Health (2017) EWHC 1147 (Admin) Collins J was concerned with challenges to the legality of the process by which remuneration of pharmacies which dispense medicines and provide other services within the NHS was to be reduced as part of the financial savings required.  There was a consultation.  It was not sought to challenge the amount of the new proposed reduction.  It was recognized that that is financial policy driven by the need to save public funds over the whole governmental estate.  What was asserted was that the means by which the reductions had been imposed had for various reasons been unfair and in breach of statutory requirements.

The challenges included that the consultation exercise was unfair, that the defendant had failed to obtain all necessary and reliable information as to the extent of closures of pharmacies that would result from the cuts so as to enable him to make a lawful decision, and that the PSED had been breached. Given that it was recognized that it was not possible to challenge the need for nor the overall extent of the required savings, the attack was on the means whereby the decision was reached and the alleged failure to appreciate that there would be adverse impacts on those who needed to make use of pharmaceutical services.

The duty of a decision maker to take reasonable steps to acquaint himself with relevant material is of course derived from the house of Lords decision in Tameside (1997) AC 1014.  As Collins J stated at para 17, the test of relevance is as expressed by the Court of Appeal in R (Khatun) v Newham LBC (2005) QB 37.

At paragraph 18, Collins J stated with respect to consultation that:-

  1. It must be fair;
  2. If it is not, it may be unlawful;
  3. What fairness requires will inevitably depend upon the facts of an individual case;
  4. To establish that the exercise was unlawful requires a claimant to establish that there was such unfairness as meant that there could not be said to have been a proper consultation because, to use the words of Sullivan J, as he then was, in Greenpeace, (2007) EWHC 311 (Admin), “something has gone clearly and radically wrong”;
  5. If non-disclosure of information is relied on (the second Gunning/ Coughlan/Moseley principle), that information must be significant to the decision to be made.

Collins J rejected the challenges.

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