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Pharmacy Brief - December 2013

Contract Appeals

NHS England appears to have difficulty understanding the new NHS Regulations, and is repeating some errors previously made by PCTs (for example by not providing reasons). Inevitably, this means the number of appeals seems to be rising.

We recently handled a case in which the NHS Litigation Authority strayed from the straight and narrow when dealing with an appeal.

After a PCT refused an application because the applicant had failed to meet one of several conditions required, the NHSLA found that the former PCT (whose decision was then supported by NHS England) had been wrong about that issue.

The NHSLA said it was upholding the appeal on that issue and said NHS England should decide if the applicant satisfied the remaining criteria for granting an application.

The NHSLA should have decided whether the applicant satisfied all the conditions necessary for the grant of the application. The NHSLA had no legal power to send the case back to NHS England.

The applicant argued that NHS England should treat the appeal as fully successful, and should put the applicant in the list of contractors. NHS England said it would do this.

Our client had to apply for judicial review and after much argument, all parties agreed with us that the NHSLA's decision should be overturned.

Planning and GPhC Registration

The GPhC has been in a tizzy about whether someone applying to register premises must have planning permission.

We were seeing cases in which registration had been granted even though planning permission has been refused, and cases where registration has been refused where permission has been sought but not yet granted.

Things came to a head when the GPhC refused to register a client’s premises and time was running out before the grant of an NHS contract lapsed.

Our client had no alternative but to apply for Judicial Review. We secured an expedited hearing for our client. The GPhC then threw in the towel.

It has now revised its procedures for dealing with registration applications and changed its application forms.

Test Purchases

The GPhC has made a big thing about not having adequate powers to make test purchases, and needing to ask the Government for powers to carry out intrusive surveillance.

We believe the GPhC already has sufficient power to carry out such purchases.

It is interesting to learn that the GPhC has refused to disclose the guidance it gives to its inspectors for carrying out test purchases, following a request under the Freedom of Information Act.

A new inspection regime is being piloted and the Government has announced that the GPhC will exercise the inspection functions of most other bodies with inspection powers.

Market Entry Decisions

We are beginning to see the first appeal decisions under the 2013 NHS Regulations.

It is still too early to identify trends, but the signs are:

  • NHS England’s Local Area Teams are still learning the ropes
  • NHS England is determined to find reasons to refuse any application, so the number of appeals is likely to rise 
  • there are more exempt applications for mail order/distance selling pharmacies, but they are being scrutinised very closely and refused for seemingly trivial reasons, so great care is needed in preparing applications or looking for grounds to oppose them
  • unforeseen benefits applications have increased; the key feature so far is whether granting an application with confer significant benefits, and the NHS Litigation Authority has already been grappling with the meaning of the word “significant”, and
  • the new relocation arrangements are very different to the old minor relocation rules. 

Some relocation applications that were refused under the old rules may now be granted, and relocations involving much greater distance may be allowed.

Protecting Intellectual Property

The European Court of Justice will be considering whether it is possible to protect a store layout/design using a registered trade mark. Our Intellectual Property team can provide advice.

It’s a Deal?

Our Pharmacy team has been busy completing transactions for clients, including:

  • CSPC (Pharmacy) Limited on its sale of two Devon based pharmacies to the Day Lewis Group
  • Summerhill Pharma Limited on its acquisition of an NHS Contract (pre-trading) for Kent based Summerhill Surgery from Community Pharmacies UK Ltd
  • Mary Cronin Management Limited on its purchase of an LPS (Essential Small Pharmacy) Contract (and associated property transactions under the Tyneside Flat Sharing Scheme) from Expertcare Limited (sale brokered by Christie & Co)
  • Devshi Chandegra on the sale of London based Barkantine Pharmacy to Brittania Pharmacy (sale brokered by Hutchings Consultants)
  • Wai Yui on the sale of London based Brent Pharmacy to Matthew Shamoon (sale brokered by Hutchings Consultants)
  • Dr Paul Daniels and others on the sale of the entire issued share capital of Surrey based Wonersh Pharmacy Limited to Canterbury Pharmacies Limited
  • The Reach Pharm Ltd on its purchase of London based pharmacy from the Day Lewis Group (sale brokered by AKB Business Sales).

This article was written by David Reissner.

For more information please contact David on +44 (0)20 7203 5065 or david.reissner@crsblaw.com.