REF: SHA/18353
1 Trevelyan Square
Boar Lane
Leeds
LS1 6AE
28 October 2016
APPLICATION BY BADHAM PHARMACY LTD FOR INCLUSION IN
THE PHARMACEUTICAL LIST OFFERING UNFORESEEN
BENEFITS UNDER REGULATION 18 AT THE VILLAGE SQUARE,
VICTORY FIELDS, UPPER RISSINGTON GL54 2QB
Tel:
Fax:
Email:
0113 86 65500
0207 821 0029
[email protected]
Initial Consideration, Site Visit and Preliminary Issues
Initial Consideration
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A summary of the application, decision, appeal and representations and observations are
attached at Annex A.
1.1
The Pharmacy Appeals Committee (“the Committee”) appointed by the Family Health
Services Appeal Unit of the NHS Litigation Authority, had before it the papers
considered by NHS England, together with a plan of the area showing existing
pharmacies and doctors’ surgeries and the location of the proposed pharmacy.
1.2
It also had before it the responses to the NHS LA’s own statutory consultations.
1.3
The Committee had before it a copy of the most recent Gloucestershire
st
Pharmaceutical Needs Assessment dated 1 December 2014 (the PNA) and
prepared by Gloucestershire County Council, which had been provided by NHS
England. The Committee also had before it a copy of a Supplementary Statements to
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the PNA, dated 22 March 2016.
1.4
On the basis of this information, the Committee considered it was necessary to hold
an Oral Hearing.
1.5
The Oral Hearing took place in the Wyck Hill House Hotel, Stow on the Wold. The
Committee comprised Mr J Whitfield QC (Chair), Mr M Smith (Pharmacy Member) Mr
M Ryder (Lay Member).
1.6
At the hearing Badham Pharmacy was represented by Mr N Wardle with Mr Badham
in attendance and Mr McKenzie-Charrington (local councillor). The Cotswold Medical
Practice was represented by Mr N Morley with Ms J Tambini (Managing Partner) and
Dr J Wreford in attendance.
1.7
The Committee dealt with the appeal by way of consideration of all the issues.
1.8
The Committee had regard to the National Health Service (Pharmaceutical and Local
Pharmaceutical Services) Regulations 2013 (“the Regulations”).
Site Visit
2.1
The Committee commenced the site visit from the Wyck Hill Hotel driving first to
Upper Rissington then to Bourton on the Water followed by Stowe on the Wold and
back to the hotel. In all this took about 1¼hrs.
2.2
The journey to Upper Rissington took 2 minutes along the main road. We Turned into
Sopwith Rd and noticed the small Co-Op store and bus-stop behind. We drove round
this part of the village noting that the houses were older and of modest size. There
were many cars. We drove along Hawker Road and Square noting the field behind
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and plenty of greenery shrubs and trees in the closes and squares. There were very
few people about and the area has the feeling of a dormitory town.
2.3
We travelled south to the central part of the village. This was less open and less well
maintained. It looked a little untidy and less affluent. The houses were smaller and in
terraces. We then drove past the Cotswold Reclamation centre on the west of the
road and noted the rather more up-market houses in Harris Gardens. We next turned
into the main areas of development. There were many larger houses, a school which
was built and functioning and a community centre. We noted renovation work to the
former officers’ mess and the two large buildings that flank this. They will clearly be
townhouses or flats. We travelled into Smith Barry Way observing some very large
houses. We noted the new shopping precinct including a Barnardo’s shop, the
Runner Bean Fitness shop, a complimentary health shop and the ‘Hanger’ eat and
meet (not yet open).
2.4
We drove round to the south and west observing the airfield and the many large
houses to the west of the development. Following this we stopped to collect Bovis
and Linden documents on display. A gentleman at the Linden office informed us that
Phases 3 & 4 were sold bar one house, Phases 5 & 6 comprising work at the
officers’ mess is under way. He provided sales prices and said that affordable
housing was limited to only 10% of the housing and most had been re-sold anyway.
He advised that a community centre is under construction but plans for a pub appear
to have fallen through.
2.5
There were road signs for allotments, a village green and a nursery school. The old
guard houses at the site entrance appear to have been converted into a nursery
school, a gym, beauty shop and hairdresser. In general the roads are quite circuitous
but there are plenty of paths and walkways giving easy access to many areas.
2.6
Overall the development appeared to be extremely well designed and well built. It is
no surprise that it has sold as expected. We were informed that current development
sales (off plan) are a little slow but these premises have not been marketed yet.
2.7
The Committee next took the minor road through Little Rissington into Bourton on the
Water, a picturesque destination and doubtless tourist magnet in the summer. There
are large attractions such has the Maze, Birdland and the Model Village plus
numerous amenities, a post office, many interesting shops and tea rooms. We went
to the George Moore cottage hospital site and noted the adjacent surgery and nearby
bus-stop. There is a large Cooperative store and a large country store nearby. The
village is generally flat with good pavements. Some new homes are being built.
There is a large car park on the edge of the village but otherwise it is very likely to get
busy. This was confirmed by the taxi-driver.
2.8
We next travelled to Stow on the Wold. Similarly this is a very picturesque village with
many interesting shops. We noted the Stow Pharmacy and Mobility Centre. The
driver advised that a surgery was trying to relocate. There is a Tesco some distance
out of town along the road to Morton on the Marsh which has a hospital and other
surgeries. From here the Committee returned to the hotel.
2.9
Our overall impression was of a, diverse scenic landscape with agriculture,
equestrian properties and small villages scattered throughout and several larger
densely populated urban areas. These had many of the expected facilities of schools,
shops, businesses, chemists, doctors and small hospitals. The area appears to be
relatively affluent although doubtless there will be some less affluent areas.
2.10
Upper Rissington itself and the area immediately around the application site was an
impressive newly built community. All the houses are either built and/or sold (bar
one). It is understandably a desirable place to live. It is clearly a dormitory aimed at
new families and established families.
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2.11
Access to local pharmacies at the moment is relatively easy by car although this may
be subject to difficult parking. The journey to nearby towns is 5-10 mins but doubtless
the roads are much more congested for several months of the year. We noted the
issue of car parking is raised on the papers. There are limited bus services available.
Access for those on foot or using cycles would be very difficult if not impossible.
2.12
The Committee is conscious of the fact that it only undertook this observation in order
to place submissions in context, it is not an evidence-gathering exercise as such and,
it could not observe the entire area around each location. It understands that roads
and shops will be busier at peak times and this may affect access to pharmacy
services.
2.13
The above summary of our observations was provided to those in attendance with the
clear acknowledgement that they contain no settled opinions. The parties were invited
to comment upon or correct matters if they appeared inaccurate or something had
been missed. A correction was made and is contained in the above summary there is
a school and a community centre at Upper Rissington rather than two schools as
originally appeared to be the case.
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4
Preliminary Matter
Regulations 40 (controlled locality and five year exclusion)
4.1
The issue of rurality was dealt with in a review in 2014 at which time Upper
Rissington was designated as a controlled locality. The Committee notes that as part
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of the Regulation 17 application number SHA/18081 (29 October 2015) the
Committee concluded that Upper Rissington is a controlled locality and the site is a
reserved location.
4.2
This application is dated 15 August 2014. Upper Rissington was a controlled locality
at that time and, no clear evidence was adduced to suggest that this situation had
altered at the date of this hearing.
4.3
Regulation 40(2) precludes a routine application such as this if it is received within
five years of a “final outcome” of a previous application unless there has been a
‘substantial and relevant change of circumstances affecting the controlled locality’.
4.4
In this case it was submitted that the ‘old’ refusal of the Regulation 17 application
mentioned above precluded this current Regulation 18 application.
4.5
Mr Wardle submitted that ‘final outcome’ must include all applications, appeals and
hearings until the case has been closed. Mr Morley argued that ‘final outcome’
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referred to the decision to refuse the application by NHSE on 30 June 2015.
4.6
The Committee noted that the Regulation employs three distinct terms in considering
the five year rule. These are ‘granted’ ‘refused’ and ‘final outcome’. It is plain that for
the Regulation to bite the ‘new’ application must be received after the final outcome of
the ‘old’ one be it a grant (see R.40(2)(a)) or refusal (see R.40(2)(b)). The application
of this Regulation is therefore determined by the meaning of the term final outcome
unless there have been substantial changes affecting the controlled locality.
4.7
Having considered the Regulation the Committee concluded that the terms ‘granted’
and ‘refused’ refer to the initial decision upon the application. However the term ‘final
outcome’ is, in each section preceded by an important phrase which sets them in a
th
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wider context ‘proceedings relating to the [grant / refusal] reached their final
outcome’. The clear import of this phrase is that ‘final outcome’ is not limited to the
decision on the application but extends to proceedings that refer to the grant or
refusal itself. To conclude otherwise would render the words ‘final outcome’ otiose.
The Committee concluded that, in the absence of any contrary argument proceedings
necessarily includes any appeals.
4.8
5
The final outcome of the Regulation 17 case including the appeal decision was
determined in October 2015 and was thus after the date of this application. In these
circumstances the Committee concluded that this application does not fall foul of
Regulation 40.
Oral Hearing Submissions
Mr Wardle of behalf of the Applicant
5.1
Mr Wardle asked two questions in summary: ‘do patients currently have a reasonable
choice?’ and ‘are there any patients with protected characteristics with
pharmaceutical needs which they have difficulty in meeting?’. He said that there was
a significant population of 2-3000 which continued to grow. These people will
undoubtedly have a range of health needs. He said that the 2011 census was out of
date however the Committee would be aware that there are children and parents,
workers, commuters and older patients resident in Upper Rissington from the papers
and from the site visit. He argued that granting the application would secure
improvements and better access.
5.2
Mr Wardle reviewed the applicable PNA and said that a supplementary statement
was expected for the PNA once over 50% of the houses at Upper Rissington had
been sold. This was not forthcoming and there was, he said, little chance of one
being produced. He described the older RAF housing and the growth in the village as
the planned expansion occurred as well as the further intended building work. The
village is to have a new centre with an expanded Co-Op store, the school,
Community Centre and other shops. He said the school opened in 2015 and was
growing steadily. It was in fact part of the school at Great Rissington which now
operated from the two sites. A pub was planned for but as yet it had not been opened
and this looked unlikely at the present time.
5.3
As to the services on offer, the application would provide a full range of services not
simply dispensing albeit that even the latter was not available in Upper Rissington
since there is no surgery there. In any event, some patients from Stow on the Wold
surgery are not eligible for dispensing from that practice. He added that both the Stow
and Bourton surgeries are ETP surgeries so patients (e.g. repeat patients) do not
have to attend the surgery to obtain pharmaceuticals. The grant would bring other
services such as essential services, support for self-care, healthy lifestyle,
signposting and appliances. The pharmacy would also seek to obtain a ‘Health Living
Pharmacy’ status. He mentioned the minor ailments scheme now being rolled out
across the county which enables some patients to obtain treatment direct from a
pharmacy for some conditions. This would be particularly helpful in a village with no
other healthcare provider. Mr Wardle advised that some patients were subjected to
lengthy delays before they could see a doctor. A pharmacy would reduce pressure on
GP practises and would be a benefit.
5.4
Looking at the issue of access, Mr Wardle asserted that it was beyond doubt that
patients could not be expected to walk to Bourton nor would they use bicycles, not
everyone has immediate access to a car but, if they do parking can be expensive and
difficult particularly in the summer. He said the same problems apply to Stow. Busservices for both towns are infrequent and expensive and there are serious concerns
about continuation of funding for buses. Again he suggested that given the demand
and growth and difficult access to existing providers granting the application would be
a benefit.
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5.5
The applicant had provided a detailed and independent survey run in conjunction with
the Co-Op store, local authority and a school. This yielded 174 replies and provided a
considerable amount of supporting information in respect of demographics and
specific needs. Several were highlighted including instances of the very old and the
very young.
5.6
At Mr Wardle’s invitation, local councillor Mr McKenzie-Charrington spoke of the
challenges facing Upper Rissington. The planning for expansion of the village was on
the basis of sustainability. He argued this meant essential services such as schools,
shops for everyday needs and healthcare. The latter was conspicuous by its
absence. This was particularly important for older residents or those living in older
housing which is of considerably lesser quality than the newly built premises. He
confirmed that there was pressure on the bus-services and this would get worse.
5.7
In short Mr Wardle said there is a significant and expanding reliant population. They
will have a range of healthcare needs. The census and, more importantly the survey
presented to us, gave a more detailed picture of the needs of older and younger
patients within that population. They would enjoy improvements to and better access
to pharmaceutical services.
5.8
Mr Wardle concluded by saying that there was evidence of specific need and of
patients with protected characteristics with needs and difficulties. Granting the
application would bring choice and significant benefits not seen in the PNA.
Mr Morley on behalf of the Cotswold Medical Practice
5.9
Mr Morley conceded that the site of the proposed pharmacy is in a reserved location.
He said that demand for services was no higher than may be expected for the
resident population. Looking at the issue of Reg.18 he said that the development at
Upper Rissington was all in the public domain and must have been taken into account
in the PNA.
5.10
When looking at access to services Mr Morley agreed that there are no healthcare
providers in Upper Rissington and patients have to leave the village to access
pharmaceutical and other healthcare services. Residents who were in the main
affluent, were used to doing so as part of their everyday lives. He criticised the survey
as being small and containing comments by people who were likely to be partial.
However, he asserted that over the long process of planning the Upper Rissington
expansion the size, scale and needs of the village had been apparent and must
therefore have been apparent to and accounted for in the PNA. He advised that bluebadge holders who had to travel to the local towns to obtain pharmaceutical services
were entitled to park on double yellow lines (if their timer was in view) and, he
confirmed that the medical practice in Bourton did not charge for parking. This
reduced the importance of some of the points made by the applicant.
5.11
Dr Wreford spoke of the majority of the population in Upper Rissington as being
younger and more mobile. He said he could not recall any time when a patient form
Upper Rissington had concerns about getting to the surgery. They operated a triage
service and appointments were available within 7 days and generally less. Home
visits were also undertaken although he had only done one in Upper Rissington
nonetheless they were available. He was concerned that patients in Bourton, Great
Leach or in Great and Upper Rissington might have to go up to Upper Rissington to
obtain their pharmaceutical supplies.
5.12
In cross-examination Mr Wardle pointed out that patients would not be disadvantaged
by having to travel to Upper Rissington to obtain medication. If the application were
granted and it is a reserved location then they would have the choice to go to the
pharmacy or remain with a dispensing practice. He asked bluntly if the practice was in
fact objecting. Mr Morley said they had a statutory right to do so because it did not
meet the regulations and the existing services are adequate.
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5.13
Mr Morley referred to the written submissions and prayed these in aid of the
objection. He asserted that although Upper Rissington is not mentioned by name the
PNA includes general comments as to development. This was a large development
the details of which were in the public domain at the time the PNA and/or the
supplementary statement were drawn up.
5.14
In response to questions from the panel Mr Morley said that people are likely to
access pharmaceutical services near to acute services. He agreed a patient may be
on a dispensing list but this does not preclude access to pharmaceutical services
from elsewhere.
5.15
Dr Wreford and Ms Tambini advised that they had not considered opening a branch
surgery in Upper Rissington since they had already closed a branch surgery
elsewhere and were fully occupied with two surgeries as it is. Mr McKenzieCharrington advised that the current small Co-Op premises had been earmarked as a
possible surgery but that no-one had shown any interest in the premises.
5.16
Mr Badham advised on the percentage of patients receiving acute or repeat
prescriptions by volume and by value. As expected these were in the range 30/70%
to 20/80% although the figure by volume varies. Mention was made of the EPS and
that a patient can re-nominate a pharmacy to access pharmaceutical services.
5.17
In their closing remarks Mr Wardle said it was remarkable that a surgery appeared to
be objecting to a pharmacy that their own patients said they needed and which was
supported and fully evidenced by the survey. Mr Morley argued that the applicant had
not met the Reg.18 criteria.
Consideration
6.1
The Pharmacy Appeals Committee (“the Committee”) appointed by the Family Health
Services Appeal Unit of the NHS Litigation Authority, had before it the papers
considered by NHS England, together with a plan of the area showing existing
pharmacies and doctors’ surgeries and the location of the proposed pharmacy.
6.2
It also had before it the responses to the NHS LA’s own statutory consultations.
6.3
The Committee had regard to the National Health Service (Pharmaceutical and Local
Pharmaceutical Services) Regulations 2013 (“the Regulations”).
6.4
The Committee first considered Regulation 31 of the regulations which states:
(1) A routine or excepted application must be refused where paragraph (2) applies
(2) This paragraph applies where (a) a person on the pharmaceutical list (which may or may not be the
applicant) is providing or has undertaken to provide pharmaceutical services
("the existing services") from (i) the premises to which the application relates, or
(ii) adjacent premises; and
(b) the NHSCB is satisfied that it is reasonable to treat the services that the
applicant proposes to provide as part of the same service as the existing
services (and so the premises to which the application relates and the
existing listed chemist premises should be treated as the same site).
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6.5
The Committee noted that in response to Part 5 of the application form (reference to
Regulation 31) the Applicant stated: “It is my view this is not relevant as there is not a
pharmacy in close proximity to Upper Rissington”. The Committee further noted NHS
England’s decision letter included “The PSRC was satisfied that there are no other
contractors currently providing pharmaceutical services from the premises to which
the application relates, or from adjacent premises. The PSRC therefore did not have
grounds to refuse the application by virtue of regulation 31.” The Committee, having
regard to the information provided to it, including that the above had not been
disputed on appeal, considered that it was not required to refuse the application by
virtue of Regulation 31.
6.6
The Committee noted that, if the application was granted, the successful applicant
would - in due course - have to notify NHS England of the precise location of its
premises (in accordance with paragraph 31 of Schedule 2). Such a notification
would be invalid (and the applicant would not be able to commence provision of
services) if the location then provided would (had it been known now) have led to the
application being refused under Regulation 31.
6.7
Upper Rissington is in a controlled locality and the application was based on securing
improvements or better access to pharmaceutical services in that controlled locality.
6.8
In those circumstances, the application (which is made under Regulation 18 of the
Regulations) must be assessed against the provisions of Part 7 of the Regulations
and, in particular Regulation 40 which reads:
(1) This paragraph applies to all routine applications—
(a) for inclusion in a pharmaceutical list as an NHS pharmacist; or
(b) from an NHS pharmacist included in such a list—
(i) to relocate to different pharmacy premises in the area of the
relevant HWB, or
(ii) to open, within the area of the relevant HWB, additional pharmacy
premises from which to provide pharmaceutical services,
where the applicant is seeking the listing of pharmacy premises which are in a
controlled locality.
(2) If the NHSCB receives an application (A1) to which paragraph (1) applies, it must
refuse A1 (without needing to make any notification of that application under Part 3 of
Schedule 2), where the applicant is seeking the listing of premises at a location which
is—
(a) in an area in relation to which outline consent has been granted under
these Regulations, the 2012 Regulations or under the 2005 Regulations
within the 5 year period—
(i) starting on the date on which the proceedings relating to the grant
of outline consent reached their final outcome, and
(ii) ending on the date on which A1 is made; or
(b) within 1.6 kilometres of the location of proposed pharmacy premises
(other than proposed distance selling premises), in respect of which—
(i) a routine application under these Regulations or the 2012
Regulations, or
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(ii) an application to which regulation 22(1) or (3) of the 2005
Regulations (relevant procedures for applications) applied,
was refused within the 5 year period starting on the date on which the
proceedings relating to the refusal reached their final outcome and ending on
the date on which A1 is made,
unless the NHSCB is satisfied that since the date on which the 5 year period started,
there has been a substantial and relevant change of circumstances affecting the
controlled locality.
(3) For the purposes of paragraphs (1) and (2), if no particular premises are proposed
for listing in A1, the applicant is to be treated as seeking the listing of pharmacy
premises at the location which is the best estimate that the NHSCB is able to make of
where the proposed listed pharmacy premises would be, having regard to the best
estimate given by the applicant under paragraph 1(7)(a)(ii) of Schedule 2.
[ (4) Paragraph (2)(b) does not apply where the NHSCB is satisfied that there are
reasonable grounds for believing the person making the refused application was
motivated (wholly or partly) by a desire for that application to be refused.
(5) The refusal of an application pursuant to paragraph (2)(b), or regulation 40(2)(b)
of the 2012 Regulations (applications for new pharmacy premises in controlled
localities: refusals because of preliminary matters), is to be ignored for the purposes
of the calculation of a 5 year period pursuant to paragraph (2)(b).]
6.9
The Committee noted that there was no information to suggest that the instant
application was in respect of a location where there had been a refusal for a previous
application within the last 5 years.
6.10
Based on its conclusion above, the Committee went on to consider the application in
light of the remainder of Part 7 of the Regulations and, in particular, regulation 41
which reads:
(1) This paragraph applies to any routine application—
(a) for inclusion in a pharmaceutical list as an NHS pharmacist; or
(b) from an NHS pharmacist included in such a list—
(i) to relocate to different pharmacy premises in the area of the
relevant HWB, or
(ii) to open, within the area of the relevant HWB, additional pharmacy
premises from which to provide pharmaceutical services,
where the applicant is seeking the listing of pharmacy premises which are in
a controlled locality and the NHSCB is required to notify the application under
Part 3 of Schedule 2.
(2) If paragraph (1) applies to an application (referred to in this regulation and
regulation 42 as “A1”), subject to paragraph (5), the NHSCB must determine whether
or not the “relevant location”, that is—
(a) the location of the premises for which the applicant is seeking the listing;
or
(b) if no particular premises are proposed for listing in A1, the location which
is the best estimate that the NHSCB is able to make of where the proposed
pharmacy premises would be, having regard to the best estimate given by
the applicant under paragraph 1(7)(a)(ii) of Schedule 2,
is, on basis of the circumstances that pertained on the day on which A1 was received
by the NHSCB, in a reserved location.
(3) Subject to regulation 43(2), the area within a 1.6 kilometre radius of a relevant
location is a “reserved location” if—
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(a) the number of individuals residing in that area who are on a patient list
(which may be an aggregate number of patients on more than one patient
list) is less than 2,750; and
(b) the NHSCB is not satisfied that if pharmaceutical services were provided
at the relevant location, the use of those services would be similar to, or
greater than, the use that might be expected if the number of individuals
residing in that area who are on a patient list were 2,750 or more.
(4) Before making a determination under paragraph (2) (referred to in this regulation
and regulation 42 as “D1”), the NHSCB must—
(a) notify the persons notified under Part 3 of Schedule 2 about A1 that the
NHSCB is required to make D1 (and it may make this notification at the same
time as it notifies those persons about A1); and
(b) invite them, within a specified period of not less than 30 days, to make
representations to the NHSCB with regard to D1 (and the period specified
must end no earlier than the date by which the person notified needs to make
any representations that they have with regard to A1).
(5) The NHSCB must not make a determination under paragraph (2) in respect of A1
in circumstances where an earlier application which was in respect of the relevant
premises and to which paragraph (1), regulation 44 of the 2012 Regulations
(prejudice test in respect of routine applications for new pharmacy premises in a part
of a controlled locality that is not a reserved location) or regulation 18ZA of the 2005
Regulations (refusal: premises which are in a controlled locality but not a reserved
location) applied was refused—
(a) for the reasons relating to prejudice in—
(i) regulation 44(3),
(ii) regulation 44(3) of the 2012 Regulations, or
(iii) regulation 18ZA(2) of the 2005 Regulations; and
(b) within the 5 year period starting on the date on which the proceedings
relating to the refusal reached their final outcome and ending on the date on
which A1 is made,
unless the NHSCB is satisfied that since the date on which the 5 year period started,
there has been a substantial and relevant change of circumstances affecting the
controlled locality.
(6) For the purposes of paragraph (5), the “relevant premises” are—
(a) the premises which are proposed for listing; or
(b) if no particular premises are proposed for listing in A1, premises at the
location which is the best estimate that the NHSCB is able to make of where
the proposed listed pharmacy premises would be, having regard to the best
estimate given by the applicant under paragraph 1(7)(a)(ii) of Schedule 2.
6.11
The Committee considered the issue of reserved location for premises described in
the application. The Committee noted NHS England’s decision letter included the
following: “The PSRC noted that the numbers of individuals residing within a 1.6km
radius of GL54 2QB who are on a patient list on the date the application was received
was 1,320. As the threshold for determining whether an area is a reserved location is
2,750 patients and there is no evidence to suggest that there is a population in the
locality that may equate to a number over the threshold due to their need or demand,
the PSRC was satisfied that the premises did fall within a reserved location and the
prejudice test was not required.” The Committee noted that this had not been
disputed on appeal. The Committee also had no information to cause it to determine
that the use of pharmaceutical services would be similar to, or greater than the use
that might be expected if the number of individuals residing in that area who are on a
patient list were 2,750 or more. Having regard to the information provided to it, the
Committee was satisfied that Upper Rissington is in a Reserved location. Given its
decision regarding Reserved location, the Committee did not have to consider the
prejudice to proper provision test.
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6.12
Pursuant to paragraph 9(1)(a) of Schedule 3 to the Regulations, the Committee may:
6.12.1 confirm NHS England’s decision;
6.12.2 quash NHS England’s decision and redetermine the application;
6.12.3 quash NHS England’s decision and, if it considers that there should be a
further notification to the parties to make representations, remit the matter to
NHS England.
6.13
The Committee considered that Regulation 18(1)(a) was satisfied in that it was
required to determine whether it was satisfied that granting the application, or
granting it in respect of some only of the services specified in it, would secure
improvements, or better access, to pharmaceutical services, or pharmaceutical
services of a specified type, in the area of the relevant HWB.
6.14
The Committee went on to consider whether Regulation 18(1)(b) was satisfied, i.e.
whether the improvements or better access that would be secured if the application
was granted were or was included in the PNA in accordance with paragraph 4 of
Schedule 1 of the Regulations.
6.15
Paragraph 4 of Schedule 1 requires the PNA to include: “a statement of the
pharmaceutical services that the HWB had identified (if it has) as services that are not
provided in the area of the HWB but which the HWB is satisfied (a) would if they
were provided….secure improvements or better access, to pharmaceutical services…
(b) would if in specified future circumstances they were provided…secure future
improvements or better access to pharmaceutical services…” (emphasis added).
6.16
The Committee considered the Gloucestershire Pharmaceutical Needs Assessment
("the PNA") conscious that the document provides an analysis of the situation as it
was assessed at the date of publication. The Committee bears in mind that, under
regulation 6(2), the body responsible for the PNA must make a revised assessment
as soon as reasonably practicable (after identifying changes that have occurred that
are relevant to the granting of applications) unless to do so appears to be a
disproportionate response to those changes. Where it appears disproportionate, the
responsible body may, but is not obliged to, issue a Supplementary Statement under
regulation 6(3). Such a statement then forms part of the PNA. The Committee noted
that the PNA was dated 1 December 2014 and that supplementary statement had
been issued on 22 March 2016.
6.17
The Committee noted pages 67 & 68 of the PNA under the heading ‘The
Assessment’. The latter includes:
6.17.1 “Anticipated future needs in relation to current health and population trends
can be met through existing services and opportunities for improvement as
detailed above. Effective delivery of pharmaceutical services will need to be
maintained when and where changes occur which can impact of the delivery
of other health and care services e.g. the reconfiguration of GP practices and
the use of technology (assistive and administrative). Future improvements in
health will depend on all community pharmacies continuing to develop their
range of services, employing a skilled workforce and adopting the ethos of
Healthy Living Pharmacies. Potential collaborative commissioning of
pharmaceutical services (between NHS England, Gloucestershire County
Council and NHSG CCG) provides an opportunity to support these
improvements.”
6.18
The Committee noted that the Applicant seeks to provide unforeseen benefits to the
patients of Upper Rissington.
11
6.19
The Committee noted that the improvements or better access that the Applicant was
claiming would be secured by its application were not included in the relevant
pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1.
6.20
In order to be satisfied in accordance with Regulation 18(1), regard is to be had to
those matters set out at 18(2). The Committee's consideration of the issues is set out
below.
6.21
In considering the general statements of the parties, the Committee accepted some
of the criticism of PNAs. They generally cover wide areas and varying demographics.
They are not expected to cover the minutiae but give an overview of needs. The
Committee noted that Upper Rissington is a large development and, although it may
have been ‘in the public domain’ as Mr Morley stated, the Committee was unable to
accept that this necessarily meant it had been specifically assessed within the PNA
and taken into consideration rendering the benefits of the application foreseen as
opposed to unforeseen. Even if this were not the case, here was no analysis of this
large development or the impact it may have within the PNA. Thus even if the
development had been identified, the unmet needs described in evidence to this had
not. As such the benefits said to flow from the application could properly be described
as unforeseen in the PNA.
Regulation 18(2)(a)(i)
6.22
The Committee had regard to
“(a)
whether it is satisfied that granting the application would cause significant
detriment to—
(i)
proper planning in respect of the provision of pharmaceutical services
in the area of the relevant HWB”
6.23
The Committee noted NHS England’s decision letter includes that; “…that granting
this application would not cause significant detriment to proper planning in respect of
the provision of Pharmaceutical Services in the area.” The
Committee was provided with no information to cause it to conclude otherwise.
6.24
On the basis of the information available, the Committee was not satisfied that, if the
application were to be granted and the pharmacy to open, the ability of the NHS
England thereafter to plan for the provision of services would be affected in a
significant way.
6.25
The Committee was therefore not satisfied that significant detriment to the proper
planning of pharmaceutical services would result from a grant of the application.
Regulation 18(2)(a)(ii)
6.26
The Committee had regard to
"(a)
whether it is satisfied that granting the application would cause significant
detriment to— …
(ii)
the arrangements the NHSCB has in place for the provision of
pharmaceutical services in that area"
6.27
The Committee noted NHS England’s decision letter includes: “….no evidence had
been presented to suggest granting this application would cause significant detriment
to the Pharmaceutical Services it already has in place.”
12
6.28
The Committee was therefore not satisfied that significant detriment to the
arrangements currently in place for the provision of pharmaceutical services would
result from a grant of the application.
6.29
In the absence of any significant detriment as described in Regulation 18(2)(a), the
Committee was not obliged to refuse the application and went on to consider
Regulation 18(2)(b).
Regulation 18(2)(b)
6.30
The Committee had regard to:
"(b)
whether, notwithstanding that the improvements or better access were not
included in the relevant pharmaceutical needs assessment, it is satisfied that,
having regard in particular to the desirability of—
(i)
there being a reasonable choice with regard to obtaining
pharmaceutical services in the area of the relevant HWB (taking into
account also the NHSCB’s duties under sections 13I and 13P of the
2006 Act (duty as to patient choice and duty as respects variation in
provision of health services)),
(ii)
people who share a protected characteristic having access to
services that meet specific needs for pharmaceutical services that, in
the area of the relevant HWB, are difficult for them to access (taking
into account also the NHSCB’s duties under section 13G of the 2006
Act (duty as to reducing inequalities)), or
(iii)
there being innovative approaches taken with regard to the delivery
of pharmaceutical services (taking into account also the NHSCB’s
duties under section 13K of the 2006 Act (duty to promote
innovation)),
granting the application would confer significant benefits on persons in the
area of the relevant HWB which were not foreseen when the relevant
pharmaceutical needs assessment was published"
Regulation 18(2)(b)(i) to (iii)
Regulation 18(2)(b)(i): (choice)
6.31
The Committee is aware of the oft-stated maxim that ‘a choice that cannot be
exercised or can only be exercised following unreasonable difficulty is no choice at
all’. Choice is to a great degree informed by ease of access. Whilst there are several
pharmaceutical-service providers to choose from the test involves an assessment as
to whether patients have a reasonable choice.
6.32
The Committee was made aware of patients in Upper Rissington who have
expressed difficulty in accessing existing services. This is clear from the
documentation provided and in particular the survey results and supporting
comments. These difficulties included concerns over distance, transport and parking.
Many commented that they could not easily access services because of this. The
Committee accepted that transport and cost implications adversely affected choice.
These difficulties are also alluded to in the papers by local councillors and the LPC.
6.33
Upper Rissington is set high on the hills and is intended to be a self-supporting
community. The issue of sustainability as outlined by Mr McKenzie-Charrington
supports the application to some extent. Whilst sustainability is an aspiration in
planning terms, when looked at from the provision of local pharmaceutical services a
large body of opinion from residents suggests it is a necessity.
13
6.34
The Committee accepted the submission that without reasonable access there is no
choice. Improved access provided by granting this application will necessarily
facilitate an improvement in choice and service provision for patients. The Committee
concluded that this would be of significant benefit to a substantial number patients.
Regulation 18(2)(b)(ii): (protected characteristics, need & difficulty)
6.35
In considering Regulation 18(2)(b)(ii) the Committee reminded itself that it was
required to address itself to people who share a protected characteristic having
access to services that meet specific needs for pharmaceutical services that are
difficult for them to access. The Committee was also aware of its duties under the
Equality Act 2010 which include considering the elimination of discrimination and
advancement of equality between patients who share protected characteristics and
those without such characteristics.
6.36
The Committee adopts the reasoning set out in respect of Reg.18(2)(b)(i) above in
concluding that this part of the Regulations is also met. The above-mentioned survey
includes information from both elderly patients and from parents with young children.
The survey comments included generalised statements applicable to many patients
as well as person-specific instances of need and difficulty at both ends of the age
spectrum. This too was highlighted by Mr McKenzie-Charrington who noted that a
number of older and/or poorer residents lived in the older houses. These are of lower
quality and have higher running costs both of which impact upon health.
6.37
Having considered the information from patients and the concerns as voiced by a
local councillor the Committee was satisfied that granting the application would confer
significant benefits to patients who share a protected characteristic and access
pharmaceutical services to meet specific needs but currently find such access
difficult.
Regulation 18(2)(b)(iii):
(innovation)
6.38
In considering Regulation 18(2)(b)(iii) the Committee had regard to the desirability of
innovative approaches to the delivery of pharmaceutical services. In doing so, the
Committee would consider whether there was something more over and above the
usual delivery of pharmaceutical services that might be expected from all pharmacies,
some ‘added value’ on offer at the location.
6.39
Innovation was not relied upon by the Appellant and, the Committee observed none
on the papers or in the oral evidence.
6.40
The Committee was not satisfied that, having regard to the desirability of there being
innovative approaches taken with regard to the deliverability of pharmaceutical
services, granting the application would confer significant benefits on persons
Regulation 18(2)(b) generally
6.41
Having considered the issues of improvements, better access and reasonable choice
both individually and in the round, the Committee concluded that all three grounds are
met. Consequently the Committee was of the view that in accordance with Regulation
18(2)(b) the granting of this application would confer significant benefits on persons in
the area of the HWB which were not foreseen when the PNA was published.
Other considerations
6.42
Having determined that Regulation 18(2)(b) had been satisfied, the Committee
needed to have regard to Regulation 18(2)(c) to (e). The Committee received no
14
information concerning any other applications or appeals. As such the Committee
was satisfied that none of these sub-provisions applied.
7
6.43
No deferral or refusal under Regulation 18(2)(f) was required in this case.
6.44
The Committee considered whether there were any further factors to be taken into
account and concluded that there were not.
6.45
The Committee was satisfied that the information provided demonstrates that there is
difficulty in accessing current pharmaceutical services such that a pharmacy at the
proposed site would provide better access to pharmaceutical services.
6.46
Given the Committee’s findings as set out above it determined that the appeal should
be allowed and the decision of NHS England must be quashed.
6.47
The Committee went on to consider whether there should be a further notification to
the parties detailed at paragraph 19 of Schedule 2 of the Regulations to allow them to
make representations if they so wished (in which case it would be appropriate to remit
the matter to NHS England) or whether it was preferable for the Committee to redetermine the application.
6.48
The Committee noted that representations on Regulation 18 had been sought from
parties by NHS England and representations had already been made by parties to
NHS England in response. These had been circulated and seen by all parties as part
of the processing of the application by NHS England. The Committee further noted
that when the appeal was circulated representations had been sought from parties on
Regulation 18.
6.49
The Committee concluded that further notification under paragraph 19 of Schedule 2
would not be helpful in this case.
DECISION
7.1
The Committee quashes the decision of NHS England and re-determines the
application.
7.2
The Committee concluded that Upper Rissington is in a controlled locality and that
the site of the application is in a reserved location.
7.3
The Committee has considered whether the granting of the application would cause
significant detriment to proper planning in respect of the provision of pharmaceutical
services in the area covered by the HWB, or the arrangements in place for the
provision of pharmaceutical services in that area and is not satisfied that it would;
7.4
The Committee determined that the application should be granted on the following
basis:
7.4.1
In considering whether the granting of the application would confer significant
benefits, the Committee determined that –
7.4.1.1 there is not already a reasonable choice with regard to obtaining
pharmaceutical services;
7.4.1.2 there is evidence of people sharing a protected characteristic having
difficulty in accessing pharmaceutical services; and
7.4.1.3 there is no evidence that innovative approaches would be taken with
regard to the delivery of pharmaceutical services;
15
7.4.2
Having taken these matters into account, the Committee is satisfied that
granting the application would confer significant benefits as outlined above
that would secure improvements or better access to pharmaceutical services.
Jon Whitfield QC
Committee Chair
A copy of this decision is being sent to:
Mr N Wardle on behalf of Badham Pharmacy Ltd – Applicant
NHS England
Ms J Watson - Boots UK Ltd
Mr S Thomas - Rowlands Pharmacy
Mr M Cox - Lloyds Pharmacy Ltd
Cllr Dr N Moor – Stow-on-the-Wold Division
Mr N V Morley – on behalf of Cotswold Medical Practice
Mr A Patel - Cohens Chemist
Annex A
REF: SHA/18353
CONSIDERATION IN ACCORDANCE WITH REGULATION 40(2) OF
WHETHER THERE HAS BEEN SUBSTANTIAL AND RELEVANT
CHANGE OF CIRCUMSTANCES AFFECTING THE CONTROLLED
LOCALITY - APPLICATION BY BADHAM PHARMACY LTD FOR
INCLUSION IN THE PHARMACEUTICAL LIST OFFERING
UNFORESEEN BENEFITS UNDER REGULATION 18 AT THE
VILLAGE SQUARE, VICTORY FIELDS, UPPER RISSINGTON GL54
2QB –
8
The Application
By application dated 30 June 2015, Badham Pharmacy Ltd (“the Applicant”) applied to NHS
England for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation
18 at The Village Square, Victory Fields, Upper Rissington GL54 2QB. In support of the
application it was stated;
8.1
In response to Part 5 of the application form (reference to Regulation 31) the
Applicant stated: “It is my view this is not relevant as there is not a pharmacy in close
proximity to Upper Rissington”.
8.2
Upper Rissington has been granted the following planning permission;
16
8.2.1
Outline application for the partial demolition of former military buildings and
existing commercial buildings and redevelopment to provide up to 368
dwellings, up to 3,140 sqm of D1 and D2 floor space, up to 2050 sqm of A1A5 floor space, up to 7,100 sqm of B1 floor space, including conversion of the
former Officer's Mess, the former Station Sick Quarters, the former Station
Headquarters and the former Education Block for residential purposes &
conversion of the former Watch Tower, the former Guardhouse and the
former Sergeants' Mess for employment purposes, together with the
provision of public open space, associated access and junction
improvements and other associated works land Parcel at Upper Rissington
418640 East 219967 North Upper Rissington, Gloucestershire.
8.3
Upper Rissington is a new village situated 4.5 miles to Stow on the World, three miles
from Bourton on the Water, and 7 miles to Burford.
8.4
This is a rapidly expanding locality , which will have 3,472 residents this year and a 010 minute drive time population base of 4,388, which excludes Bourton on the Water,
Stow on the Wold and Burford. (Source Land at Upper Rissington Retail Assessment
2008).
8.5
A new primary school opened, in March 2015, which is indicative of a growing and
active population.
8.6
A new Village Community Centre opened in March 2015 which also confirms the
infrastructure is now being provided to local residents. In addition Upper Rissington
has a mixed use development, of over with 15,000sq foot of employment space.
8.7
Upper Rissington is isolated for other service providers because of the distances
involved and the lack of footpaths and street lighting. It is impossible for residents to
access any pharmaceutical services by foot.
8.8
There are no accessible pharmacy services to the residents and visitors of Upper
Rissington in close proximity.
8.9
There can be no doubt a new pharmacy at this location will secure unforeseen
benefits.
8.10
The Parish Council have previously confirmed the proposed pharmacy will deliver:
8.10.1 Better health care support;
8.10.2 More accessible pharmacy;
8.10.3 Additional health services.
8.11
The Applicant confirms that the unforeseen benefits it wishes to provide to the new
housing developments at Upper Rissington includes all of the services it has
committed to in the application and also includes the Essential services listed below,
which are;
8.11.1 dispensing of medicines;
8.11.2 repeat dispensing;
8.11.3 disposal of unwanted medicines;
8.11.4 promotion of healthy lifestyles;
8.11.5 signposting;
17
8.11.6 support for self-care;
8.12
It is very clear that the Accident and Emergency departments, the 111 Service and
Doctor Surgeries are unable to cope with the increased workloads and that an
innovative approach needs to be made to meeting the needs of the increasing
population in this locality. A new pharmacy at this location would provide medication
under the Urgent Repeat Medication Service to reduce patients need to contact 111
for the supply of medication.
8.13
It must be accepted that a pharmacy in Upper Rissington will provide unforeseen
benefits to patients and in particular improve the outcomes for the following services:
8.13.1 reduce smoking rates in adults and young people;
8.13.2 reduce mortality rates from heart disease, stroke and cancer;
8.13.3 reduce under 16 and under 18 conception rates;
8.13.4 reduce the year on year rise in obesity;
8.13.5 under 16 year olds seeking emergency hormonal contraception;
8.13.6 weight management for over 65 year olds.
8.14
Badham Pharmacy offers free Health Checks to all patients. It is reported that nearly
5,000 residents in the County have diabetes, but that this has been undetected at the
moment.
8.15
The proposed pharmacy would provide the following unforeseen benefits:
8.15.1 improved access to high quality pharmaceutical services;
8.15.2 pharmaceutical services closer to patients homes;
8.15.3 access to a platform of free diagnostic tests;
8.15.4 access to a free weight management clinic.
8.16
The new pharmacy will be located in the centre of the "The Village Square" Upper
Rissington. The pharmacy will be supported by a range of other retailers including the
new Co-op food store.
8.17
The pharmacy will open extended hours and will provide accessible services to the
residents, workers and visitors to Upper Rissington.
8.18
The Pharmacy will have two consulting rooms, which will facilitate the provision of all
the services this application has committed to provide.
8.19
The Applicant’s staff will be trained to provide these services and any other service it
is directed to offer.
Service Delivery
8.20
Badham Pharmacy has considerable expertise in providing services to all sectors of
the population, but especially to the young and to the elderly. The Applicant’s
exceptional service platform will ensure that both of these age groups receive the
level of support and care they deserve.
Healthy Living Pharmacy (HLP)
18
8.21
It is fundamental to all pharmacy contractors in Gloucestershire engage with this new
service delivery and patient intervention system. Badham Pharmacy already have 7
Healthy Living Pharmacies in Gloucestershire, with the remainder of the company in
process of achieving accreditation later this year.
Sexual Health Services
8.22
Badham Pharmacy already provide these in its pharmacies, and would wish to extend
these services to the new pharmacy. These will include the supply of C Card
condoms, the supply of Chlamydia testing kits and the treatment of clients who have
a positive test result. The Applicant would also supply the morning after pill in
accordance with the Service Level Agreement.
Appliance Use Reviews.
8.23
These reviews would be available in the pharmacy consulting room, or at the patient's
home, by appointment.
Medicine Use Reviews.(MUR'S)
8.24
In the Applicant’s experience at its pharmacies, these reviews are very beneficial in
increasing patients understanding of their medication and cutting waste.
The Minor Aliment Scheme (MAS)
8.25
The MAS is currently a pilot scheme being offered to clients where appropriate in
Tewkesbury and Gloucester City.
8.26
There can be no doubt this will extended across Gloucestershire in time, and all of
the Applicant’s pharmacists will be ready to provide the service.
Smoking Cessation
8.27
It is the Applicant’s experience in new housing developments that there can be an
increase in smoking, which is a serious issue particularly with young people. The
Applicant expects this to be challenged in the developments due to the demographics
of the residents. The Applicant wishes to provide a local accessible service.
Services to Schools
8.28
The Applicant supports local schools by advice and support on common conditions.
Weight Management
8.29
The Applicant’s pharmacies already provide free weight management clinics which
have achieved some impressive results. This free service would be provided at the
new pharmacy.
Urgent Repeat Prescription Service (URMS)
8.30
The new Urgent Repeat Medication Service is invaluable in supporting patients when
their surgery is closed and the supply of the medication they have has run out. This
service is therefore essential in a pharmacy with extended hours of service.
Private PGD's
19
8.31
Finally the Applicant provides a range of services via private PGD, these ensure
patients can have access to medication and treatments at very competitive prices.
Case History COT 2014-03
8.32
The LPC has confirmed that a community pharmacy would be asset to the growing
community.
8.33
Little Rissington Parish Council, has supported the proposal for a pharmacy in Upper
Rissington.
8.34
Clearly there is support for a pharmacy in Upper Rissington.
Summary
8.35
The proposed pharmacy will satisfy the unforeseen benefits Upper Rissington has,
because of the rapid and sustained housing developments.
8.36
The Applicant intends to provide the following services:
8.36.1 Essential services
8.36.2 Clinical Governance
8.36.3 Appliances:
8.36.3.1The Applicant will provide the same exceptional service platform as
at its other pharmacies.
8.36.3.2The Applicant will supply all Essential, Advanced and Enhanced
service. The Applicant will fully comply with all requests from NHS
Gloucestershire for any service, funded or non-funded.
8.36.3.3The Applicant will apply for Healthy Living Pharmacy Status.
8.36.3.4The Pharmacy will comply with all of the requirements for Clinical
Governance.
8.36.3.5The Applicant will supply all of the appliances listed in part 19 of the
drug tariff and will supply a stoma and catheter service and an
Appliance Use Review service.
8.36.4 Advanced and Enhanced services – As specified on the application form.
8.37
8.38
The Applicant’s proposed core opening hours are:
8.37.1 Mon to Fri
9-6
8.37.2 Sat
9-12.30
8.37.3 Sun
-
The Applicant’s proposed total opening hours are:
8.38.1 (As above).
9
The Decision
20
NHS England considered and decided to refuse the application. The decision letter dated 16
March 2016 states:
9.1
NHS England has considered the application and is writing to confirm that it has been
refused.
9.2
The PSRC had before them:
9.2.1
The application;
9.2.2
Map of the relevant area;
9.2.3
Responses from the interested parties;
9.2.4
Response from the applicant regarding the interested parties comments;
9.2.5
Guidance – Pharmacy service in Controlled localities;
9.2.6
Excerpt from the guidance on Unforeseen Benefit (Regulation 18);
9.2.7
Confirmation of patient numbers within 1.6km of proposed new pharmacy;
9.2.8
Relevant local information;
9.2.9
Copy of the previous PSRC minutes from May 2015;
9.2.10 Copy of the NHS LA decision on appeal against previous PSRC decision.
9.3
Based on this information, the PSRC considered it was not necessary to hold an oral
hearing.
Consideration by the PSRC
9.4
The PSRC agreed that the application is to be considered under Regulation 18 of the
NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.
9.5
The Senior Admin Support, NHS England South (South Central) gave the PSRC an
overview of the history of the applications for this area. This application was
submitted by Badham Pharmacy Ltd in July 2015. It was deferred until the outcome
of a previous application was determined by the NHSLA. The previous application
was submitted under Regulation 17 of the NHS (Pharmaceutical and Local
Pharmaceutical Services) Regulations 2013. The PSRC refused the application, and
the decision was upheld by the NHS Litigation Authority on the 29 October 2015.
9.6
The PSRC were aware that a rurality review was previously undertaken for the area
and the decision that Upper Rissington is a controlled locality was made in August
2014. NHS England had decided that it was not necessary to consider rurality again
at this time. The PSRC noted that the numbers of individuals residing within a 1.6km
radius of GL54 2QB who are on a patient list on the date the application was received
was 1,320. As the threshold for determining whether an area is a reserved location is
2,750 patients and there is no evidence to suggest that there is a population in the
locality that may equate to a number over the threshold due to their need or demand,
the PSRC was satisfied that the premises did fall within a reserved location and the
prejudice test was not required.
9.7
The LPC representative asked the Committee if they had considered the five year
rule under Regulation 40(2). The PSRC confirmed that consideration had been given
21
to these criteria, however, it had been agreed that Regulation 18 and Regulation 17,
under which the previous application had been made, are not similar and the tests
are entirely different therefore it did not seem reasonable to refuse to consider the
Regulation 18 application.
9.8
The PSRC noted the applicant is proposing 48.5 core hours and supplementary
hours. The core & supplementary hours are 9am - 6pm Monday to Friday and 9am 12.30 on Saturday.
9.9
The PSRC also noted that the applicant is offering to provide essential services,
advanced and enhanced services from the proposed location.
9.10
The PSRC discussed the applicant’s comments on housing growth in the area and
noted his reference to planning permission for around 380 dwellings in Victory Fields.
A member of the PSRC had confirmed from developers that 169 are now occupied;
Linden Housing has 83 out of 169 occupied, and they expect all to be occupied by
September 2016. Bovis Homes has 86 out of 213 occupied, and they expect all to be
occupied by the summer 2017. The PSRC noted that the PNA is clear that a review
will take place once more than 50% of the new homes are occupied.
9.11
NHS England had contacted Gloucestershire County Council regarding plans for the
next update to the PNA. It was confirmed that the PNA Steering Group will meet in
the next few months to consider the need to review the current PNA in light of recent
housing developments. The PSRC noted that Upper Rissington has a growing
population, however it was felt that the growth may not yet be significant enough to
conclude that a new pharmacy is a necessity in the locality at this time.
9.12
The PSRC noted the applicant’s comment regarding the distances between
pharmacies and the lack of footpaths and street lighting between them. The applicant
states that it is impossible for residents in Upper Rissington to access pharmaceutical
services by foot. The PSRC noted that there are regular bus services (routes 802
and 818) between Bourton-on-the-Water and Stow-on-the-Wold that go through
Upper Rissington. The bus service has recently been enhanced and has therefore
improved access to pharmaceutical services.
9.13
The Applicant summarised the history of Upper Rissington stating that a new primary
school and community centre opened in March 2015. The new community centre has
a Co-op convenience store, gym and hairdressers and services are continuing to
expand in Upper Rissington.
9.14
The Applicant also stated that they will provide a collection service from all GP
surgeries in Gloucestershire. The PSRC noted from the PNA that currently 13 of the
15 community pharmacies within the Cotswolds offer a collection of prescription
services from GP practices. The PSRC also noted that internet pharmacies provide
services to patients anywhere in the United Kingdom.
9.15
The application was circulated to interested parties in accordance with the
Regulations. The PSRC summarised the responses received:
9.15.1 Boots UK Ltd, opposes this application and states the PNA will be revised
once more than 50% of the new dwellings are occupied. The Health and
Wellbeing Board have made this provision; therefore it is unclear what is
unforeseen in the PNA.
9.15.2 Cohens Chemist, opposes this application as there is no need in the PNA,
the new housing will be low density, the residents of Upper Rissington are
affluent and mobile, and there is reasonable choice of pharmaceutical
services in the area.
22
9.15.3 Dudley Taylor Pharmacies Ltd, did not wish to make any comments on this
application at this stage but would like to be kept informed of its progress.
9.15.4 Lloyds Pharmacy Ltd, opposes this application stating that residents of Upper
Rissington can access surrounding pharmacies.
9.15.5 Gloucestershire County Councillor Nigel Moor (for the Stow Division),
supports this application as he believes there is a need for a new pharmacy
in Upper Rissington.
9.15.6 Nigel Morley, on behalf of Cotswold Medical Practice opposes this application
due to the applicant not submitting any information regarding what is
unforeseen, innovative or specific to patients with protected characteristics.
9.15.7 L Rowland & Co (Retail) Ltd, opposes this application as they do not believe
the applicant has identified any patients with protected characteristics,
identified why there is not reasonable choice, nor demonstrated innovation in
service delivery.
9.16
The PSRC discussed the responses received to the written representations received.
9.16.1 Gloucestershire County Councillor Nigel Moor (for the Stow Division)
reiterated his support for this application, and believes the PNA did not fully
assess the need for a new community pharmacy in Upper Rissington.
9.16.2 Nigel Morley, on behalf of Cotswold Medical Practice reiterated his client’s
view that regulation 18 is not met within the application.
9.16.3 The applicant responded to each of the written representations stating that no
argument put forward by any of the interested parties should prevent this
application being approved.
9.17
Dr Stephen Alvis, on behalf of the Local Medical Committee, submitted written
comments to the Committee. He pointed out that there are dispensing GP Practices
in Stow and Bourton, and a pharmacy in Bourton that is less than three miles from
Upper Rissington.
9.18
The PSRC proceeded to check the application against Regulations 31and 32 of the
NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.
Under Regulation 31
9.19
The PSRC was satisfied that there are no other contractors currently providing
pharmaceutical services from the premises to which the application relates, or from
adjacent premises. The PSRC therefore did not have grounds to refuse the
application by virtue of regulation 31.
Under Regulation 32
9.20
The PSRC was satisfied that the premises are not within an LPS designation. The
PSRC therefore did not have grounds to refuse the application by virtue of regulation
32.
9.21
The PSRC proceeded to check the application against all aspects of Regulation 18 of
the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.
Under Regulation 18(2)(a)
23
9.22
The PSRC concluded that granting this application would not cause significant
detriment to proper planning in respect of the provision of Pharmaceutical Services in
the area. The PSRC also noted that no evidence had been presented to suggest
granting this application would cause significant detriment to the Pharmaceutical
Services it already has in place. The PSRC noted that the dispensing figures for the
surrounding pharmacies are low however no concern was raised in this regard by any
parties. The PSRC did not have grounds to refuse the application by virtue of this
regulation.
Under Regulation 18(2)(b)(i)
9.23
The PSRC concluded that there is reasonable choice for Pharmaceutical Services in
the area. The Dispensing Practices dispense to patients in Upper Rissington. The
pharmacy in Bourton-on-the-Water is 3.3 miles from Upper Rissington. The
pharmacy in Stow-on-the-Wold is 4.6 miles away, and the pharmacy in Northleach is
9.1 miles from Upper Rissington.
Under Regulation 18 (2)(b)(ii)
9.24
The PSRC discussed the definition of a protected characteristic. It was agreed that
age, disability, gender reassignment, marriage and civil partnership, pregnancy and
maternity, race, religion or belief, sex and sexual orientation are factors. The PSRC
noted that no evidence had been presented to show that these groups of the
population had difficulty accessing existing services in the area.
Under Regulation 18(2)(b)(iii)
9.25
The PSRC agreed the applicant had failed to identify innovative pharmaceutical
services not already provided by the pharmacies in the Cotswold area.
Under Regulation 18(2)(c)
9.26
The PSRC was satisfied that it would not be desirable to consider any other
application at the same time as this application.
Under Regulation 18(2)(d)
9.27
The PSRC was satisfied there were no other applications to consider at the same
time as this application.
Under Regulation 18(2)(e)
9.28
The PSRC was satisfied there were no other applications under appeal.
Under Regulation 18(2)(f)
9.29
The PSRC was satisfied that the application did not need to be deferred under any
provision of Part 5 to 7 of the Regulations.
9.30
At this point in the meeting Fiona Castle left the room.
Determination
9.31
The PSRC agreed to refuse the application on the grounds that it did not pass the
tests of Regulation 18 of the NHS (Pharmaceutical and Local Pharmaceutical
Services) Regulations 2013. The PSRC determined that there is no evidence of an
unforeseen benefit in the application. The PSRC agreed that a pharmacy in the area
may provide benefits in the future; however, NHS England will be guided by the PNA.
24
10
The Appeal
In a letter to the Family Health Services Appeal Unit of the NHS Litigation Authority (“the
Appeal Unit”), dated 5 April 2016, the Applicant appealed against NHS England's decision.
The grounds of appeal are:
10.1
This application has been submitted under the “Unforeseen Benefits” criteria that will
secure improvements or better access, to the residents, patients and visitors to Upper
Rissington, which were not included in the Pharmaceutical Needs Assessment
(PNA).
10.2
The PSRC make references to the PNA being reviewed later this year. Whilst this
might be true, this information is irrelevant to the consideration of this application and
confirms that the PNA has not taken into account the needs of this growing
settlement, which is the basis of the application.
10.3
The Applicant believes the PSRC have not applied the correct regulatory tests to this
application and therefore their decision is fundamentally flawed.
10.4
In particular the Applicant would highlight the following points:
10.4.1 Even though the PSRC accepted the rapid growth and high occupancy of the
new houses in Upper Rissington, they were unable to support the need for a
new pharmacy, which is a flawed outcome;
10.4.2 The PSRC made comment to the statement of fact that there is a lack of
footpaths and street lighting between Upper Rissington and Bourton-on-theWater, and Stow-on-the-Wold, and yet they failed to conclude that this fact
would prevent anyone accessing a pharmacy on foot;
10.4.3 The PSRC made reference to the bus service 802 and 818. The Panel failed
to identify that the 802 service time table is linked to trains to London. This
results in 50% of the service connections occurring when pharmacies are
closed, for example the 5.20 am service (timetable provided).
10.4.4 The Applicant would challenge the assertion and statement that the bus
services are regular. The 818 only runs on a Friday and departs from Upper
Rissington at 12.55 with no return service!;
10.4.5 The 802 service is not regular service, for example the service has a two
hour gap at midday;
10.4.6 The PSRC have not accepted the fact that 6 new shops are being built in the
new local shopping centre, which will meet the needs of the residents and
visitors for local services. These shops are nearing completion and will be the
local hub for the community;
10.4.7 The PSRC make reference to one service the Applicant has committed to
provide in the application, which is the collection service, but sought to ignore
the other 39 services contained in the application, in their consideration of the
application;
10.4.8 The PSRC make reference to internet pharmacies providing services to
patients anywhere in the United Kingdom, but failed to explain how services
such as Truss Fitting, Weight Management, the Urgent Repeat Prescription
Service, or Emergency Hormonal Contraception can be provided by post.
10.4.9 The PSRC has not fully addressed the issues raised by County Councillor
Nigel Moor in respect of the PNA.
25
Regulation 18(2)(b)(i)
10.5
The PSRC failed to take into account the accessibility of Pharmaceutical services.
10.6
There is not a reasonable choice of pharmaceutical service to the residents of Upper
Rissington. There are no public transport links to Bourton-on-the-Water; the
pharmacy is Stow-on-the-Wold is a considerable distance away.
Regulation 18 (2) b (ii)
10.7
The PSRC have not taken into account the findings of the Gloucestershire
Neighbourhood Profiles 2014 , which confirms that Upper Rissington is rated HOT
against the County averages for Population under 17, Population 16-24, Foundation
Stage Profile Pupils and Emergency admissions of under 17’s.
10.8
This data confirms the needs of these residents with protected characteristic who are
in the top 10% in the County averages.
Summary
11
10.9
The rationale, decision making process are all flawed.
10.10
Therefore the application should have been granted.
Summary of Representations (Regarding Regulation 40)
11.1
The FHSAU wrote parties on 21 June 2016 as follows:
11.1.1 “We note from NHS England's papers that a previous routine application was
refused on 29 October 2015. We are therefore required to consider the
application of Regulation 40. We note that no party has provided information
relating to the application of Regulation 40. We therefore invite each party to
make representations relating to the application of Regulation 40.
11.1.2 Any representations received will be circulated to parties for observations and
the Pharmacy Appeals Committee will then determine the appeal.”
11.2
This following is a summary of representations received in respect of Regulation 40.
Rowlands Pharmacy
11.3
Rowlands agree that Regulation 40 should be considered in this case in relation to
the previous routine application. Rowlands do not believe as required in Regulation
40(2), that there has been a substantial and relevant change of circumstances
affecting the controlled locality; the housing referred to in the application was being
developed when the last application was made and determined.
11.4
Rowlands believe that the decision of NHS England was correct in this case.
Boots UK Ltd
11.5
The Regulations are clear that unless there has been a substantial and relevant
change, NHS England must refuse an application where the applicant is seeking the
listing of premises at a location which is within 1.6km of premises in respect of which
a routine application was refused in the 5 year period of the final outcome of that
application.
11.6
The Applicant's previous routine application offering identified improvements or better
access under Regulation 17 was refused on 29th October 2015. Boots are not aware
26
of any substantial material changes since this time and therefore submit that in the
absence of any evidence to the contrary, the Pharmacy Appeals Committee will have
no option but to refuse this application.
Mr N Morley – on behalf of Cotswold Medical Practice
11.7
Cotswold Medical Practice (CMP) do indeed note that an application was considered
by the Litigation Authority (SHA/18081- Badham Pharmacy Ltd) and was refused on
th
29 October 2015. In its deliberations, the Committee concluded that ‘Upper
Rissington is in a controlled locality and that the site of the application is in a reserved
location’.
11.8
As the address given for the current application is the same as that given for the
previous application which was refused, CMP would say that Regulation 40(2)(b)
applies. i.e. the current application has been made within five years since the refusal
of the previous application and that during the 7 months which have since elapsed,
there has been no substantial or relevant change of circumstances affecting the
controlled locality.
11.9
Accordingly, CMP would respectfully ask the Committee to refuse this application.
Badham Pharmacy Ltd (Applicant)
11.10
No respondents have made any reference to Regulation 40 in their numerous
submissions, which confirms that all parties did not consider there was any case to
answer in the determination of the application in relation to Regulation 40.
11.11
If any interested party felt the manner in which the requirements of this Regulation
were not fully addressed, and had not been properly discharged, they have had
plenty of opportunity to make that point both to the PSRC and to the Litigation
Authority.
11.12
In the decision letter of the 17 March 2016 NHS Shared Business Services reported
on page 2 the following,
th
11.12.1 “The LPC representative asked the Committee if they had considered the five
year rule under Regulation 40(2). The PSRC confirmed that consideration
had been given to these criteria”.
11.13
The PSRC then confirmed that “the tests are different therefore it did not seem
reasonable to refuse to consider the Regulation 18 application”.
11.14
Regulation 40 can be overruled if the locality under consideration has had any
relevant changes, since the last determination and the on-going building programme
would, on its own merits, be sufficient reason for the Panel to proceed with the
application.
11.15
NHS England South (South Central) did therefore consider the implications of
Regulation 40 in additional to the other regulatory tests when the application was
th
submitted and later determined at the meeting of the 18 February 2016.
11.16
It is therefore self-evident that the PSRC did not consider that there were grounds to
refuse determination of our application under Regulation 40, in addition the
“substantial and relevant changes “ to the locality support this view, or the application
would be refused immediately as per the requirements of regulation 40(2)(b).
11.17
This evidence further supports the appeal, that a community pharmacy is now
required in Upper Rissington.
NHS England
27
12
11.18
NHS England South (South Central) discussed the application of Regulation 40 at the
Pharmaceutical Services Regulations Committee meeting held 18th February 2016.
The members felt that Regulation 18 and Regulation 17, under which the previous
application had been made, are entirely different and therefore it did not seem
reasonable to refuse to consider the application made under Regulation 18. This
decision is recorded in the minutes of the meeting.
11.19
Furthermore, throughout their discuss ion. the Committee members noted the
considerable advancement of the housing development underway in Upper
Rissington constituting a substantial and relevant change of circumstances affecting
the controlled locality (Regulation 40(2).
Observations (regarding Regulation 40)
No observations were received by the FHSAU in response to the representations received in
respect of Regulation 40.
13
Summary of Representations (Regarding Regulation 18)
This is a summary of representations received on the appeal. A summary of those
representations made to the NHS England are only included insofar as they are relevant and
add to those received on the appeal.
Cohens Chemist
13.1
Cohens agree with the reasons given by the PSRC to reject this application. Cohens
believe they addressed all the matters to be considered in the appeal, as did the
letters from those consulted.
13.2
The Pharmaceutical Needs Assessment has taken into account the housing being
built (highlighted by Boots letter to PCS 27 November 2015). No gaps in
pharmaceutical services were identified for this area, and the population is affluent
and mobile. They have to currently travel to other towns to buy larger grocery
shopping and other retail purchases and to access pharmaceutical and general
medical services. The proposed 'local' shops will not provide the larger retail needs of
this population.
13.3
Bus services are not the main transportation mechanism in this area.
13.4
Cohens do not believe the needs identified by the Applicant of the under 17
population will be provided by a pharmacy i.e., emergency admissions. The applicant
has not identified what these admissions are a result of.
13.5
All the non advanced/essential services identified by the Applicant are private
services and as such could be withdrawn at any time.
13.6
Cohens request that the appeal be dismissed as the application does not secure
improvements, or better access, to pharmaceutical services, in the area of the Health
and Wellbeing Board, in whose pharmaceutical needs assessment the improvement
or better access have not been included.
Mr N V Morley (on behalf of Cotswold Medical Practice)
13.7
Cotswold Medical Practice note the appeal and comment as follows:13.7.1 Cotswold Medical Practice do not agree with the Appellant that the PSRC did
not take into account the Pharmaceutical Needs of Upper Rissington.
28
13.7.2 The Appellant has offered no evidence to show that the Pharmaceutical
Needs Assessment (PNA) did not take into account the Pharmaceutical
needs of Upper Rissington.
13.7.3 It is not axiomatic that the building of new houses justifies the need for
additional pharmacy consent.
13.7.4 Cotswold Medical Practice believe that the PSRC did make the correct
decision and did not ignore the copious but often irrelevant evidence adduced
by the Appellant.
13.7.5 Cotswold Medical Practice believe that the PSRC did fully address the issues
raised by County Councillor Nigel Moore in respect of the PNA.
13.7.6 Cotswold Medical Practice would say that the rationale decision making
process resulting in the determination of refusal of consent to the appellant
was not flawed and indeed was the correct decision because Badham
Pharmacy Limited failed to provide sufficient and relevant evidence that
complied with the parameters of Regulation 18 in general.
13.7.7 As regards the findings of the Gloucestershire Neighbourhood Profiles, since
these are based purely on age segments, these are not specific descriptions
of groups of persons with protected characteristics.
13.7.8 Cotswold Medical Practice provides its letters to NHS England sent on the 21
January 2016 (undated) and 8 December 2015. Cotswold Medical Practice
do not therefore intend to repeat all the points made in them however, it
would ask the Authority to put significant weight on the points made in
Cotswold Medical Practice’s letter of the 8 December 2015.
13.7.9 Cotswold Medical Practice note that the appellant has not appealed the fact
that the application site is both a controlled area and a reserved location.
Summary
13.8
Cotswold Medical Practice would say that on at least the balance of probabilities, the
NHS Commissioning Board/NHS England made the correct determination in refusing
consent to the above applicant/appellant to join the pharmaceutical list of NHS
England at Village Square Upper Rissington.
13.9
Cotswold Medical Practice would respectfully ask the Authority to refuse the appeal.
13.10
Cotswold Medical Practice would also respectfully ask the Authority to confirm that
Upper Rissington is both a controlled and reserved location.
Copy undated letter to NHS England
13.11
In response to copies of the written representations NHS England have received on
the application:
13.11.1 The other respondents confirm that the locality is a rural reserved location;
13.11.2 Respectfully NHS England must have regard to current PNA;
13.11.3 Cotswold Medical Practice note from the correspondence that transport links
have improved for Upper Rissington thus making access to Pharmaceutical
Services easier;
Summary
29
13.12
Cotswold Medical Practice would say that Upper Rissington is a reserved location
and that the application does not comply with the parameters of Regulations 18.
Cotswold Medical Practice respectfully invite NHS England so to determine on at
least the balance of probabilities.
Copy letter to NHS England dated 8 December 2015
13.13
Cotswold Medical Practice categorically agree that the location for the proposed
pharmacy is within a controlled locality. There have been no significant and relevant
changes to the locality since the last recent determination of rurality.
13.14
Cotswold Medical Practice would say that since according to NHS England’s records,
the number of registered patients living within 1.6km of the village square Victory
Fields, Upper Rissington Gloucestershire GL54 2QB is 1,320, that this application is
categorically in a reserved location.
13.15
Since the application on the date of receipt by NHS England, is within a reserved
location, then Regulation 44 - the Prejudice Test does not apply.
13.16
Whilst the current Upper Rissington development is 368 houses, this is unlikely in the
future to result in a change of reserved location status. It is also unlikely that the full
368 houses will be built for quite some time as the developers are having trouble
selling the ones they have already built and are offering them for rent instead.
However, if the reserved location status was to change at some point in the future,
this application would prejudice medical services supplied by Cotswold Medical
Practice.
13.17
Whilst comments on “gradualisation” may not be appropriate for many years (if ever)
Cotswold Medical Practice reserve their right to comment and ask for postponement
of termination of dispensing rights Regulation 50(2) aka gradualisation.
13.18
As regards to the substantive application:13.18.1 Cotswold Medical Practice have received no complaints from patients
regarding poverty of pharmaceutical services in Upper Rissington;
13.18.2 Within a 20 minute commuting distance, there are at least ten pharmacies of
which one is a 100 hour pharmacy (see Appendix 1 provided). Many of these
pharmacies deliver to Upper Rissington.
13.18.3 Since Upper Rissington has and continues to have limited shopping facilities,
people are accustomed to obtaining their daily needs at Bourton-on-theWater, Stow-on-the-Wold, Burford, Morton-in-Marsh, Cheltenham and
Chipping Norton. All of these towns have at least one pharmacy.
13.18.4 There have been no developments since the publication of the PNA which
were not foreseen.
13.18.5 In respect of the current house building, this was all within the public domain
and had commenced before the publication of the April 2015 PNA. The PNA
would have anticipated this.
13.18.6 The Applicant has failed to specify the unforeseen benefits (Regulation 18) in
his application but rather has listed essential and un-commissioned services
supplied at his numerous other pharmacies in Gloucestershire.
13.18.7 The application fails to specify any innovative services.
13.18.8 The application fails to specify any specific unforeseen benefits for persons
with protected characteristics.
30
13.18.9 The applicant has adduced a paragraph entitled “Case History COT2014-03”.
This is un-referenced and has no supporting evidence. Cotswold Medical
Practice would say that without references and supporting evidence, no
weight should be put on the unsubstantiated claims made in this paragraph.
13.18.10The Applicant has made the claim “We will provide the same exceptional
service platform as at our other pharmacies.”. This is an unsupported value
judgment statement. There are other unproven dogmatic statements in their
application.
Conclusion
13.19
The Applicant has adduced no significant benefits to be provided by a pharmacy if
consent was to be granted by NHS England. The reference to the 368 houses is very
old news and was well known and in the public domain prior to the publication of the
PNA.
13.20
Cotswold Medical Practice would therefore say that this application fails to meet the
parameters of Regulation 18. Cotswold Medical Practice therefore respectfully invites
the determining committee of NHS England to refuse consent to Badham Pharmacy
to enter the Pharmaceutical List of NHS England at Upper Rissington.
13.21
Cotswold Medical Practice invite the confirmation of the rurality and reserved location
status of Upper Rissington.
Rowlands Pharmacy
13.22
NHSLA will be aware that Rowlands submitted comments to the initial application
(copy attached). In response to the appeal Rowlands would like to make the following
observations:
13.22.1 The PNA is quite clear that there will be a review of the document once 50%
of houses are occupied. The decision letter from NHS England is clear that
that point has not yet been reached but, in anticipation, the local authority will
meet to review the document in the near future. Given that an assessment of
need has been made and that a review will occur it is unclear to Rowlands
what unforeseen benefits the appellant is seeking to fill. Rowlands firmly
believe that the decision of NHS England was correct and that the application
was premature at best.
13.22.2 The Appellant makes numerous references to bus services in the area.
However, Rowlands would find it extraordinary that a new resident would
have bought a new home with no consideration about how they would access
the services they need on a day-to-day basis. If this assumption is correct,
then the majority of new families to the area will have access to their own
vehicles and will not be reliant on a bus service. This is supported by the fact
that all the homes currently listed as available with both developers have
driveways and garages. Further support is given when considering the value
of the homes for sale; Rowlands do not believe it would be usual for homes
costing £340,000 upwards to not have access to a vehicle.
13.22.3 Rowlands believe that the decision of NHS England was correct in this case.
Rowlands trust that these comments will be placed before the committee.
Rowlands letter to NHS England dated 17 December 2015
13.23
Rowlands note that this is the third application made by Badham Pharmacy Ltd for a
pharmacy at this site with the latest being refused by FHSAU quite recently.
Rowlands also note that the FHSAU found that this location is both controlled and
reserved.
31
13.24
The Gloucestershire PNA does not highlight a need for a pharmacy in this location
which makes an application under regulation 16 appropriate. However the PNA does
state "anticipated future needs in relation to current health and population trends can
be met through existing services". Clearly, with the developments taking place in
Upper Rissington an assessment of need has been completed and therefore the
perception of the need in this location cannot be said to be unforeseen.
13.25
Rowlands don't believe the applicant has:
13.25.1 Identified any patients with protected characteristics who would benefit from
this application being granted;
13.25.2 Identified why there is not reasonable choice via existing pharmacies or
dispensing practices;
13.25.3 Demonstrated any innovation in service delivery.
13.26
As a consequence of the above Rowlands do not feel that the application meets the
regulatory test and must be refused.
Lloyds Pharmacy Ltd
13.27
There are pharmacies situated in the surrounding area that provide access to
pharmaceutical services as part of everyday life. The appeal provides no additional
evidence that supports the application will secure improvements or better access to
pharmaceutical services in the context of Regulation 18.
NHS England
13.28
NHS England South (South Central) held a meeting on 18 February 2016. Having
reviewed the application and consultation responses, it was decided that oral
submissions would not be necessary.
13.29
The PSRC was mindful of the requirement to determine the effect of the application
with regard to certain matters set out in Regulation 18.
13.30
The PSRC concluded that there is reasonable choice for Pharmaceutical Services in
the area. The Dispensing Practices dispense to patients in Upper Rissington and
there are pharmacies located in Bourton-on-the-Water, Stow-on-the-Wold and
Northleach. There is no evidence to suggest that patients do not easily access
pharmacy services.
13.31
The PSRC considered the definition of a protected characteristic. It was agreed that
no evidence had been presented to show that any group within the population had
difficulty accessing existing pharmacy services in the area.
13.32
The PSRC agreed the applicant had failed to identify innovative pharmaceutical
services not already provided by the pharmacies in the Cotswold area.
13.33
The Panel agreed the application does not demonstrate significant benefits which
were not foreseen when the PNA was published. Therefore, following consideration
of all matters, the Panel agreed to refuse the application on the grounds that it did not
pass the tests of Regulation 18 of the NHS (Pharmaceutical and Local
Pharmaceutical Services) Regulations 2013.
Boots UK Ltd
13.34
The decision letter from NHS England demonstrates that members of the PRSC
considered all matters fully when making their determination of this application. Boots
32
have no observations to make in addition to those of the PRSC and no substantive
comments to submit in addition to those within our letter to NHS England dated 27
November 2015 (copy not provided).
County Cllr Dr Nigel Moor, Stow-on-the-Wold Division
13.35
In Cllr Moor’s role as a County Councillor representing the division of Stow on the
Wold which includes Upper Rissington he has been advised that the Gloucestershire
Pharmaceutical Needs Assessment Steering Group at their meeting on the 7 June
are to consider whether the Gloucestershire PNA requires review in the light of the
developments at Upper Rissington. The evidence that Cllr Moor has submitted to
them is as follows:
13.35.1 Cllr Moor writes in his capacity as Gloucestershire County Councillor for the
Stow division which includes not only the town of Stow-on-the-Wold but
Moreton-in-Marsh, and some eighteen villages including the growing village
of Upper Rissington. This is a large rural area and accessibility to key
services, particularly for the young and elderly, who rely on public transport,
is a continuing concern. The county council subsidise rural bus services in
the area but Cllr Moor cannot match the accessibility that is offered in urban
areas such as Gloucester or Cheltenham. It is for that reason that it is
essential that local services are provided as close as possible to the resident
population.
13.35.2 Cllr Moor is very familiar with the village of Upper Rissington having had an
office in the business centre there for a number of years. It is quite evident to
him that the latest PNA (dated 1 December 2014) has under-estimated both
the scale and speed of population growth at the village. It is the fastest
growing village in Cllr Moor’s division.
13.35.3 There is a basic health issue here. Badhams Pharmacy Ltd are offering an
extensive range of health services that meet the objectives of the PNA. The
delivery of medicines free of charge on request by existing pharmacies is no
substitute for this extensive service, which will be particularly important to the
young and elderly.
13.35.4 Cllr Moor has examined the PNA (December 1 2014) and consider that the
pharmacy would meet a need identified in the PNA. Cllr Moor set out his
reasons below:
13.35.4.1Cotswold District has a higher proportion of older people and lone
pensioners than elsewhere in Gloucestershire.
13.35.4.2The community pharmacy provision is 18 per 1000 and although not
the lowest in the county is significantly lower than the national
average of 21 per 1000.
13.35.4.3Although all residents are within a 20-minute drive time to a
community pharmacy this ignores the reality that may younger and
older residents do not have access to a car.
13.35.4.4Improved provision of delivery service could be seen as beneficial in
the Cotswolds.
13.35.4.5Upper Rissington is identified on Figure 11 as a potential growth
area in the next 5 years. At page 53 the conclusion is drawn that
future housing development is focussed on existing communities that
already have necessary facilities and pharmaceutical services, and
therefore it is anticipated that the existing providers of pharmaceutical
services in these specific potential areas of future development would
33
meet the needs of the population. This may be the case in towns
such as Moreton in Marsh and Cirencester which are likely to
experience significant housing growth but that is not the case in
Upper Rissington where the necessary facilities are to be provided as
part of the growth including the pharmacy.
13.35.4.6The PNA advises that where more than 50 new houses are to be
built in areas that do not have necessary (page 54) facilities, the PNA
will be revised once more than 50% of the new dwellings are
occupied. The original planning permission at Victory Fields was for
368 dwellings and it is estimated that more than 50% of dwellings
have now either been occupied.
13.35.4.7In respect of the aspiration of the PNA to seek improved access to
delivery services the Gloucestershire LPS point out that the only
commissioned delivery services are those provided by distance
selling pharmacies.
13.35.4.8The PNA does not refer to any improvement or better access that
requires a new community pharmacy in Upper Rissington. Since the
publication of the PNA the existing 802 bus service has now been
enhanced to provide a better service from Upper Rissington to Great
Rissington, Little Rissington and Bledington so that these villages
would be more accessible to a new pharmacy at Upper Rissington by
bus.
14
13.36
There does appear to be sufficient grounds to conclude that the PNA has not fully
assessed the need for a new community pharmacy at Upper Rissington. Cllr Moor
provides the results of a survey conducted by Badhams in association with himself,
Cllr Mark Mackenzie - Charrington the District Councillor and the parish council which
shows the overwhelming support for the pharmacy amongst the local community.
13.37
This raises a difficult question of NHS governance which Cllr Moor feels he must
raise with the NHSLA. Cllr Moor has attended many public meetings at Upper
Rissington which is a growing community with many issues to address. The public
perception is that the NHS are more interested in perpetuating existing methods of
health care delivery than addressing the emerging issues at Upper Rissington. This is
a serious challenge but given the repeated refusals to this application it is one that
Cllr Moor is beginning to share.
Observations (regarding Regulation 18)
Observations received by the FHSAU in response to the representations received on appeal.
Badham Pharmacy (Applicant)
14.1
The Applicant has noted the copies of submissions from interested parties in respect
of this appeal.
Pharmacy Needs Assessment (PNA)
14.2
Planning was granted at Appeal in 2010 for the Upper Rissington Village
redevelopment in.(sic) Linden Homes will have completed their build programme by
autumn of this year. The current PNA could not have foreseen the speed and scale of
the development at Upper Rissington.
14.3
The PNA failed to take into account the pharmaceutical needs of the residents of
Upper Rissington.
Planning Appeal
34
14.4
The development was granted permission after an appeal (Appeal Decision
APP/F1610/A/09/2112497). The Appeal Decision Inquiry held on 19-22 and 26-29
January 2010 Site visit made on 25, 27 and 29 January 2010.
14.5
The Appeal made specific reference within Clause 5 to health provision;
14.5.1 “Health care provision is one of the community facilities proposed in the
application and the Undertaking would ensure that it is provided. The Council
do not require the provision but the appellant still wishes to provide it to meet
the needs generated by the development and to allow a period of 5 years
from its implementation for the marketing of it”.
14.6
And later in the Appeal document at Clause 83, the issues of accessibility is
addressed;
14.6.1 “I have found that the proposal would provide measures to increase the
sustainability of Upper Rissington village as a whole and thereby promote
greater self containment and a stronger local community without harming the
services within the nearby principal settlement of Bourton-on-the-Water”.
New Applications
14.7
Bovis and Linden homes have submitted a further application for new homes on
Delfin Way. It is self-evident that Upper Rissington will continue to grow beyond its
current approval. (source Upper Rissington Parish Council).
Reponses to submission from interested parties
Cllr Dr Nigel Moor Stow on the Wold Council
14.8
The Applicant would remind the panel, that this submission is the only submission
from an interested party, who has no financial motive for his responses. This
submission is therefore based only on his extensive local knowledge of Upper
Rissington and the surrounding villages.
14.9
Cllr Moor has stated that the PNA has failed to reflect the needs of Upper Rissington
in terms of the scale and speed of the development; this is proven by the findings of
the resident’s questionnaire.
14.10
Cllr Moor has confirmed that the young and elderly in particular have serious issues
accessing pharmacy services and these groups are patients with protected
characteristics because of the specific needs of their age group.
14.11
Cllr Moor has identified that the PNA has acknowledged developments where there
are existing providers, will be able to meet the needs of the growing population,
however there are no pharmacy services in Upper Rissington. The PNA has therefore
failed to accept the needs of this substantial new large village.
14.12
The results of the public engagement questionnaire, has been the only opportunity for
local residents to make their views and needs heard as part of the consultation.
The results of the questionnaire highlight the following facts
14.13
Nearly 50% of the families in Upper Rissington have one or more children in the
family. (Question 2)
35
14.14
65% of households have one or more residents with a long term health condition,
such as high blood pressure, arthritis, epilepsy, asthma, COPD or diabetes.(
Question 5)
14.15
Nearly 60% of residents have issues accessing pharmacy services in the locality.(
Question 6)
14.16
Nearly three quarters of residents who have issues accessing pharmaceutical
services state that it is the distances to access pharmacies, which includes the
elderly residents who are unable to drive or have mobility issues, which is the main
reason for issues with accessing services.(Question 7)
14.17
Over 75% of residents state they do not believe there is reasonable choice of
pharmacy services locally. (Question12)
14.18
40% of residents have visited a pharmacy not to have a prescription dispensed in the
last 12 months.(Question19)
Open responses to questions in the residents questionnaire
Question 12 Do you think there is a reasonable choice of pharmacy services locally
The main issues raised include;
14.19
Too far to walk;
14.20
25 minute drive time to obtain prescriptions;
14.21
Parking in Bourton-on-the-Water terrible due to the location of the pharmacy and the
fact that Bourton is a major tourist attraction;
14.22
Some families have one car, and therefore during the day there is no access to
private transport;
14.23
Pharmacies do not provide the Minor Aliment Scheme;
14.24
The bus service is poor;
14.25
Bourton pharmacy does not carry enough stock;
14.26
Pharmacies are not accessible in the winter, due to snow closing the roads.
Question 14 Do you think a pharmacy in Upper Rissington is needed?
The main issues raised include,
14.27
Upper Rissington has trebled in population with the new developments;
14.28
There is no regular bus service;
14.29
Some families have a lack of private transport;
14.30
The population of Upper Rissington is nearly now 2,000;
14.31
Upper Rissington has a high level of young and elderly patients with health issues;
14.32
It is a 20 minute drive to have a prescription dispensed.
36
Question 16 Would you value the ability to discuss your pharmacy needs face to face with a
pharmacist locally?
The main issues raised include;
14.33
More efficient;
14.34
Would save a GP appointment;
14.35
Pharmacist is a professional with expert knowledge.
Question 18 What innovations in pharmacy services would you like to see provided in Upper
Rissington?
The main issues raised include;
14.36
Healthy living pharmacy;
14.37
The provision of the Minor Aliment Scheme;
14.38
Health checks to include blood pressure, diabetes and cholesterol checks;
14.39
Weight management;
14.40
Flu vaccinations;
14.41
Baby clinics;
14.42
Immunisations.
Summary
14.43
Without doubt the results of this consultation confirm than residents in Upper
Rissington do not have reasonable choice of pharmacy provider locally.
14.44
Patients with protected characteristics for example the elderly have real issues with
mobility which makes accessing pharmacies some distance away, a real barrier.
14.45
Badham Pharmacy have committed to provide a service that will meet all of the
health needs of this expanding village.
14.46
It is very clear from the resident questionnaire that a community pharmacy in Upper
Rissington will confer significant health benefits, which is the requirement of
Regulation 18 of the pharmacy regulations.
Cohens
14.47
Cohens have omitted to accept the fact that Upper Rissington is to have a new
market square containing six retail units. Residents in Upper Rissington will therefore
not need to source services outside of the village to buy grocery shopping and other
retail purchases. The market square commenced construction in 2015, and was not a
reality when the PNA was last reviewed.
14.48
Cohens seek to challenge the value a Community Pharmacy will have on the current
level of emergency admissions. The facts are that children are admitted for
emergency admissions in Gloucestershire for the following conditions (Source Public
Health England Chid Health Profiles Gloucestershire June 2015);
14.48.1 Accident and Emergency 0-4 13,091
37
14.48.2 Injury
0-4 989
14.48.3 Asthma under 19
189
14.48.4 Mental Health
61
14.48.5 Self-Harm
628
14.49
A Pharmacy in Upper Rissington would assist in reducing emergency admissions due
to the comprehensive range of services Badham Pharmacy has committed to
provide. The accessibility of a pharmacist in the community engaging with all local
commissioned services and also offering a range of health interventions, this service
platform will support patients locally.
14.50
Badham Pharmacy will support asthma patients through the MUR programme and
advice for good inhalers technique when dispensing inhalers.
14.51
Badham Pharmacy have pharmacies fully trained on the minor aliment scheme which
does reduce the demand on A+E.
14.52
Badham Pharmacy provides the Urgent Repeat Medication Service at all of our
pharmacies which further reduces demands on A+ E departments.
14.53
Cohens statement that a pharmacy will not secure improvements or better access is
totally at odds with the results of the residents questionnaire. Cohens have no
evidence to support this statement and this observation must fall
Mr Morley
14.54
The results of the residents survey confirms that the PSRC did not take into account
the pharmaceutical needs of Upper Rissington. Residents have unmet local needs,
lack of access to pharmacy services and no reasonable choice of provider.
14.55
The PNA is silent on the needs of the fast growing development at Upper Rissington.
14.56
Upper Rissington is a separate new settlement, not co-located to a settlement with
health services provided accessibly.
14.57
The Applicant considers that the PSRC has not addressed any of the issues Cllr
Moor has raised and considers his submission remains unresolved.
14.58
It is a fact that people with specific characteristics are protected from discrimination
under the law (source PNA 2.5 page 11). Mr Morley is therefore incorrect in his
statement that age is not a protected characteristic.
14.59
Mr Morley seeks to exclude the case evidence, which is that the Gloucestershire LPC
have been supportive of the proposal for a pharmacy in Upper Rissington, and this
supports stands.
14.60
Mr Morley seeks not to accept the fact that the evidence within the application proves
a pharmacy at Upper Rissington will confer significant benefits on the residents of this
locally. This fact has been further endorsed by the findings of the resident’s
questionnaire.
Rowlands Pharmacy
14.61
Rowlands are incorrect in their statement, “that this is the third application made by
Badham Pharmacy for a pharmacy at this site”.
38
14.62
The facts are that this is the first time Badham Pharmacy have applied under the
unforeseen benefit criteria, there is therefore no case history under this class of
application.
14.63
The resident survey confirms that only 7% of residents use the bus service to Stow
on the Wold and only 14% use the service to Bourton-on-the-Water.
14.64
Whilst residents may have a private car, that does not mean they have access to their
car during the day, accessing services is a barrier for residents.
Lloyds Pharmacy
14.65
Lloyd’s submission is also contrary to the evidence provided by the resident
questionnaire, accessibly of pharmacy services is a major issue for residents in
Upper Rissington, and this fact has been proved by the questionnaire.
NHS England South
14.66
NHS England seek to make statements that are not based on any patient/resident
consultation, but merely their view. There is now evidence to confirm that groups
within the population have difficulty accessing existing pharmacies in the area. The
results of the questionnaire submitted by Cllr Moor, confirms that this is so.
14.67
The Panel were incorrect in that this application does offer significant benefits to the
residents in Upper Rissington and the surrounding villages.
Boots
14.68
Their submission adds no weight to the determination.
Summary
14.69
The facts are;
14.69.1 The submission from Cllr Moor includes the results of a questionnaire which
has for the first time enabled residents to make their circumstances and
views known, regarding pharmacy services to this locality. This evidence
proves that the PNA did not take into account the pharmaceutical needs of
the residents of Upper Rissington.
14.69.2 The results of this questionnaire confirm that a Community pharmacy in
Upper Rissington will confer significant benefits to the residents.
14.69.3 The results of the survey further confirm the serious issues many patients
have access services.
14.69.4 This is the first application Badham Pharmacy has applied for in Upper
Rissington under the Unforeseen Benefits criteria.
14.69.5 The application does offer significant benefits to the residents of this locality,
as the questionnaire confirms the issues many residents have with accessing
pharmacies.
14.69.6 There is a fundamental change to Upper Rissington with the new market
Square which is now nearing completion. The impact on residents is that
there will have access to a range of new local services, which must also
include a community pharmacy.
39
14.69.7 The speed of growth at Upper Rissington could not have been forecasted
when the PNA was written, nor did the PNA have the benefit of the resident
questionnaire which confirms the serious issues patients have with the
current pharmaceutical provision.
14.69.8 The questionnaire has confirmed that there are large numbers of young
families in Upper Rissington; in addition elderly patients who both are
patients with protected characteristic and both groups have issues with
accessibility to services. This evidence proves that the PSRC were incorrect
in their determination of the application from Badham Pharmacy.
14.69.9 Upper Rissington is a new development, not in close proximity to any other
village, and therefore has a specific need for a pharmacy.
14.69.10Badham Pharmacy will engage with all commissioned services together with
all of the additional services committed to in the application. The Applicant’s
service platform is the more extensive than other providers.
14.70
15
The Applicant therefore trusts that this appeal will be granted, so services can be
provided without delay.
Further Comments
Badham Pharmacy Ltd (“the Applicant”)
Email to the FHSAU from the Applicant dated 9 June 2016
15.1
Please see email the Applicant has received from the PNA Steering Group. This
confirms that the current PNA does not reflect the needs of the residents of Upper
Rissington.
15.2
On this basis the appeal must be granted.
15.3
Copy email to the Applicant from David Squire, Healthcare Commissioning and
Clinical Governance Practitioner, Gloucestershire County Council:
15.3.1 “The Gloucestershire PNA Steering Group met yesterday and decided that a
‘Supplementary Statement’ would be necessary given the additional housing
development and occupation at Upper Rissington since the publication of the
PNA. It will be doing this in line with relevant regulations. The group also
agreed to begin the process of reviewing and updating the Pharmaceutical
Needs Assessment itself.”
Mr N V Morley (on behalf of Cotswold Medical Practice)
15.4
It only takes 10 minutes to drive from Upper Rissington to Bourton, not the 20 or 25
minutes as stated by the appellant.
15.5
There is ample free parking in Bourton in the car park adjacent to the surgery where
most residents of Upper Rissington currently obtain their prescriptions.
15.6
Statistics in the public domain demonstrate that Upper Rissington has a mainly young
and mobile population, there is not a high number of elderly or frail residents as
adduced by the appellant.
15.7
Cotswold Medical Practice are not aware of any evidence to suggest that Community
Pharmacies have an impact on reducing emergency hospital admissions indeed logic
would suggest that community pharmacies may in fact increase emergency hospital
40
admissions as pharmacists will have the best interests of patients in mind and will
adopt a ‘safety first’ approach
15.8
The fact that the Gloucestershire PNA steering group have decided that a
supplementary statement would be necessary is not proof that their eventual updating
of the Pharmaceutical Needs Assessment (PNA) will include a statement of identified
pharmaceutical needs in Upper Rissington. In any case the above application is
offering unforeseen benefits and not future needs. Additionally the Authority can only
weigh evidence that is current at the time of their consideration and determination of
the appeal.
Conclusion
15.9
Cotswold Medical Practice would say that no relevant and sufficient evidence has
been provided in the two responses from the appellant that would give cause for the
Authority within the Pharmaceutical Regulations to grant the appeal by Badham
Pharmacy in relation to the above application refusal.
15.10
Cotswold Medical Practice respectfully invite the Authority therefore to refuse the
appeal, we also reaffirm our willingness to attend an Oral Hearing if such be
constituted.’
Ray Bushell
FHSAU Case Manager