2025-09-28 12:16:17
The NHS control of entry procedures came under consideration by Lord Lake in the Court of Session (Outer House) in a judicial review application by LP North 16 Limited t/a Dears Pharmacy [2025] CSOH 91.
Applications for NHS contracts (for inclusion in a Health Board’s pharmaceutical list) are governed by the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009. The Regulations say that applications may only be granted if the Local Health Board’s Pharmaceutical Practices Committee:
“is satisfied that the provision of pharmaceutical services at the premises named in the application is necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood in which the premises are located by persons whose names are included in the pharmaceutical list.”
In this case, TPB Partnership LLP sought admission to the pharmaceutical list for Lothian. When TPB first applied to Lothian Health Board, the existing pharmacy in the neighbourhood was owned by Lloyds Pharmacy Limited. That pharmacy was later bought by LP North 16 Limited t/a Dears Pharmacy (the Petitioner).
The PPC granted the application on three occasions. The Regulations provide a right of appeal in specified circumstances to a National Appeal Panel (NAP) and each time the PPC granted the application, the Petitioner appealed. On the first two occasions, the NAP allowed the appeal because of procedural flaws in the PPC’s decisions and the NAP sent the case back to the PPC for redetermination. On the PPC’s third attempt to make a decision on the application, the Petitioner asked to introduce fresh evidence as to the existing adequacy of the provision of pharmaceutical services in the neighbouhood, so that adequacy was not assessed on the basis of historic evidence (bearing in mind that some years had passed since the PPC had first considered the applicastion).
The PPC refused to allow fresh evidence to be given and limited itself to determining the application in the light of the basis on which the NAP had sent the application back for reconsideration. The NAP rejected the Petitioner’s third appeal and the Petitioner applied for judicial review.
The judge, Lord Lake rejected a submission by TPB that the Petitioner did not have standing to appeal to the NAP in the first place, because the Petitioner had not owned a pharmacy in the neighbourhood at the time the application was first made to Lothian Health Board.
Lord Lake dismissed the Petitioner’s application for judicial review, having regard to the wording of the appeal provisions in the Regulations. He said “it would not have been appropriate in view of the direction given by the [NAP] on the first appeal, to have revisited the issue of adequacy with a clean sheet at the time of the third decision.”
The judge went on to say:
“It is clearly not satisfactory that the decision as to whether or not [TPB’s] application is to be granted turns on an assessment of adequacy of provision made some time ago. … While the current position is unfortunate, it cannot overcome the wording of the statutes or what is required by them. I accept the submissions for the petitioner that the procedure set out in the Regulations is intended to be swift. It is unfortunate that that was not the position here. However, that notion of a swift procedure favours an interpretation of “reconsideration” which would enable it to be carried out rapidly and not one which would require a reopening of all issues.”
This decision marks yet another difference between applications in Scotland and in England. In England (where the necessary or desirable test is no longer used), the approach of NHS Resolution when determining applications has been to look at the position at the time when the decision is made, not the time when the application was made.