Home > Cases > R (Assura Pharmacy Ltd) v E Moss Ltd (t/a Alliance Pharmacy) [2008] EWCA Civ 1356

Regulation 12 of the National Health Service (Pharmaceutical Services) Regulations 2005 provides for admission to the NHS’s pharmaceutical list where the PCT is satisfied that it is necessary or desirable to grant the application in order to secure, in the neighbourhood in which the premises from which the applicant intends to provide the services are located, the adequate provision, by persons included in a pharmaceutical list, of the services, or some of the services, specified in the application (‘the necessary or desirable test’). In applying the necessary or desirable test the PCT must have regard in particular to whether the recipients of pharmaceutical services already have a reasonable choice with regard to (i) the pharmaceutical services provided in the neighbourhood in which the premises named in the application are located, by persons included in a pharmaceutical list, and (ii) the persons included in a pharmaceutical list from whom such recipients may obtain pharmaceutical services in the neighbourhood in which the premises named in the application are located. The claimant sought admission to the pharmaceutical list, in order to open pharmacies in two areas, T and F. In the area T there were two pharmacies, both of which were operated by the interested party (Alliance). In relation to area F, there was one other pharmacy operated by a different company. In each case the pharmacy appeals committee of the defendant authority dismissed the appeals against refusal of the relevant trust of the application to admit the claimant to the list. The claimant applied for judicial review of the decisions. The main question of construction of the Regulations before the judge was to what the decision-maker had to have regard in relation to the ‘reasonable choice’ as to (i) the pharmaceutical services and (ii) the persons included in the list.

Held: Appellant’s appeal dismissed and NHSLA’s cross-appeal allowed. The issue of reasonable choice had to be looked at compendiously and not necessarily separately in relation to each of the elements of pharmaceutical services or directed services and the person from whom recipients might obtain pharmaceutical services. The factors set out in reg 12(2) were ones to which the decision-maker had to have regard when considering the ‘necessary or desirable’ test. The factors were not determinative, nor were they to be given any particular weight.

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