Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 138

P115/14

OPINION OF LORD DOHERTY

In the Petition of

TARVES HEALTH LIMITED

Petitioner;

for

 

Judicial Review of a decision of Grampian Health Board dated 4 December 2012

Pursuer:  Lindsay QC;  Dundas & Wilson CS LLP

Defender:  Ellis QC;  NHS Central Legal Office

9 September 2014

Introduction
[1]        The respondents are Grampian Health Board.  Since 15 June 2010 a pharmacy at 8 Duthie Road, Tarves, Aberdeenshire been included in the pharmaceutical list prepared by the respondents.  The pharmacy began trading in December 2010.  The petitioners are the pharmacy owners.

[2]        The National Health Service (Scotland) Act 1978 (“the 1978 Act”), section 28(1) provides:

“28.— Persons authorised to provide pharmaceutical services.

(1) Except as may be provided by or under regulations, no arrangements shall be made by a Health Board with a medical practitioner or dental practitioner under which he is required or agrees to provide pharmaceutical services to any person to whom he is rendering primary medical services under Part 1 or general dental services.…”

 

[3]        The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004 (“the 2004 Regulation”), Schedule 5, Part 3, paragraph 44 provides:

“(1) A contractor may secure the provision of dispensing services to its registered patients only if it is authorised or required to do so by the Health Board in accordance with this paragraph.

(2) Where the Health Board is satisfied, after consultation with the area pharmaceutical committee, that a person, by reason of –

(a) distance;

(b) inadequacy of means of communication; or

(c) other exceptional circumstances,

will have serious difficulty in obtaining from a pharmacist any drugs, medicines or appliances, other than scheduled drugs, required for that person’s treatment, the Health Board shall require or authorise the contractor with whom the person is a registered patient to supply such drugs, medicines and appliances to that person until further notice…”

 

[4]        In this petition the petitioners challenge the legality of the respondents’ decision of 4 December 2012 authorising Haddo Medical Group (“HMG”) to provide dispensing services to all its registered patients residing in the communities of Methlick and Pitmedden.

 

Background
[5]        HMG operates a main surgery practice in Pitmedden and a satellite surgery in Methlick.  Until 7 September 2012 it also operated a satellite surgery in Tarves.  Pitmedden is approximately 3.2 miles from Tarves, and Methlick is approximately 4.9 miles from Tarves. Neither Pitmedden nor Methlick has a pharmacy.

[6]        On 9 December 2010 the respondents’ Pharmacy Practices Committee (“PPC”) refused an application by another pharmacy operator to be included in the respondents’ pharmaceutical list (prepared in terms of the National Health Service (Pharmaceutical Services (Scotland) Regulations 2009, regulation 5) in respect of premises in Pitmedden.  It unanimously held that the existing provision of pharmaceutical services in the neighbourhood of Pitmedden was adequate.  On 21 April 2011 the National Appeal Panel dismissed the appeal against that refusal.

[7]        Prior to the opening of the pharmacy in Tarves HMG were required and authorised by the respondents in terms of paragraph 44 to provide dispensing services to its registered patients at each of its three surgeries.

 

The first review
[8]        As a result of the opening of the Tarves pharmacy the respondents decided to review the existing paragraph 44 requirement and authorisation.  They constituted the Dispensing Doctor Decision Making Group (“DDDMG”) and asked it to consider whether HMG should be authorised to continue dispensing to any patients in the Tarves, Pitmedden and Methlick areas.  The DDDMG allowed a 60 day period for consultation.  Interested parties, including the petitioners’ predecessors as owners of the pharmacy, made submissions.  On 24 January 2012 the DDDMG reported to the respondents.  It concluded that patients in Methlick continued to have serious difficulty in obtaining drugs, medicines or appliances from a pharmacist because of poor communication and transport links with Tarves; but that patients in Pitmedden and Tarves no longer had serious difficulty in accessing a pharmacist.  It recommended that from January 2013 dispensing should cease to all patients registered with HMG except those residing in Methlick.  On 3 April 2012 the respondents accepted the DDDMG’s recommendation.  They restricted the paragraph 44 authorisation to those of HMG’s patients registered as living in the community of Methlick.  Dispensing to residents in Tarves was to cease almost immediately.  Dispensing to residents of Pitmedden was to be permitted only for a further 12 months.

 

The closure announcement and the local campaign
[9]        In August 2012 HMG announced that it planned to close its Tarves surgery.  HMG maintained that without the profit generated from dispensing at Pitmedden and Tarves the Tarves surgery was not viable.  A local campaign began to try to save the Tarves surgery and to retain dispensing at Pitmedden.  The respondents agreed to ask a review panel “to review the outcome and recommendations” of the DDDMG.  The panel chairman was an employee of the respondents.  In the review panel’s report (6/11, page 5) it summarised the circumstances leading up to its appointment as follows:

“A meeting in September 2012, which was hosted by the Rt Hon Alex Salmond MSP and First Minister for Scotland with representatives of NHS Grampian, the community councils and the local community focused on concerns of some of those present that the Board had failed to assess serious difficulty of access appropriately and that circumstances had changed since the decision to restrict dispensing was made. NHS Grampian agreed to work with representatives of the community, Community Councils and other interested stakeholders to clarify issues raised at the meeting. NHS Grampian agreed that the concerns raised at the meeting justified a review of the decision …

 

NHS Grampian held a further meeting with the Rt Hon Alex Salmond MSP and representatives of the community councils in October 2012 to support the community councils in clarifying their challenge to the NHS Grampian decision to restrict dispensing by the Haddo Medical Group …”

 

The second review
[10]      The review panel received written submissions from two MSPs and detailed written submissions (7/22) from Udny and Tarves Community Councils.  The community councils’ submissions incorporated findings from, and analysis based on, a survey carried by them.  The submissions narrated (page 3):

“Residents who have their own vehicles are not considered to be in serious difficulty. They are able to visit the doctors in Pitmedden, drive three miles to Tarves to collect their prescription and drive three return miles. This is inconvenient, but does not constitute serious difficulty.”

 

The submissions went on to state that while 58% of relevant residents always had access to a car, 28% had limited access to a car and 14% had no access (7/22, Appendix B).  They contained new and detailed “realistic assessment” journey times for those using public transport to visit the petitioners’ pharmacy.  They contended that of those dependent on public transport 52% to 81% would take more than 2 hours to see a doctor in Pitmedden, travel to the pharmacy, obtain the prescription and return to Pitmedden (7/22, page 4).  The panel also had access to the information which the DDDMG had had at the time of the first review.

[11]      On 21 November 2012 the respondents’ Director of Pharmacy and Medicines Management telephoned Mrs Craig of the petitioners asking for details of the petitioners’ collection and delivery service.  Mrs Craig’s clear recollection is that the Director indicated something was about to happen, but that he did not indicate what it was.  The Director concerned has no clear recollection of the conversation.  He sent a follow-up email.  Ms Craig replied to it in the following terms:

“Tarves Pharmacy currently collects prescriptions every day from Pitmedden Surgery at 8.30am and 4pm.  These prescriptions are then dispensed by qualified staff in the Pharmacy ready for collection or delivery on the same day.

 

We offer a free delivery service with no restrictions in regard to age, mobility, location or frequency of deliveries. This ensures that our patients in Tarves, Pitmedden, Methlick and the surrounding areas have NO SERIOUS DIFFICULTY or INCONVENIENCE in accessing their medication from a Pharmacy.

 

We currently deliver to a number of patients in Tarves, Barthol Chapel, Pitmedden and Udny Green on a regular basis. …

 

With regard to Pitmedden itself, we already visit the village at least twice a day and cater for patients who have specific delivery needs. There will be no issue with extending the delivery service provided. For example we have several patients who are housebound and require their medication to be delivered at a specific time of day to fit around when they have a carer or family member present who can answer the door.

 

I can assure you that Tarves Pharmacy will continue to offer this level of service on a daily basis in the future. While this is not a service we are contracted to provide, it is common with most Pharmacies. Given our rural location it is a necessity for our patients that we will ALWAYS be willing to provide…”

 

[12]      On 22 November 2012 the review panel heard a presentation from the community councils in support of their written submissions, and representatives of the councils answered questions which the panel had.  The panel’s report (6/11 of process) concluded:

“Although the Review Panel was presented with considerable information there was one over-riding new analysis of information presented on behalf of the Community Councils which, the panel believe, demonstrated serious difficulty by reason of inadequacy of means of communication. (Interpretation of this by the panel concerned the use of public transport by a proportion of the population of Pitmedden). The full analysis was presented to the panel.

 

In summary, the analysis showed likely “whole episode” times for patients to be seen by a doctor and then get their drugs dispensed (which included bus times).  The analysis surveyed some 450 residents and demonstrated availability of access to a car during normal working hours.  All of the analysis provided likely numbers of the population … who might be involved.  The majority of the Review Panel believed that serious difficulty was demonstrated.

 

The Review Panel considered the impact of these scenarios on the population and concluded that a proportion of the population would have serious difficulty. This suggested that Haddo Medical Group should continue to dispense to its practice population in all areas except that covered by the Tarves neighbourhood.

 

The Review Panel considered this serious difficulty against the provision of a “twice daily delivery service” by the Tarves Pharmacy but felt that, on balance, serious difficulty was still demonstrated. 

 

Recommendation for the Grampian NHS Board

The Review Panel therefore recommends to Grampian NHS board that the Haddo Medical Group continues to dispense NHS prescriptions for its practice population in all areas except that covered by the Tarves neighbourhood …” (emphasis added).

 

[13]      At a meeting of the respondents on 4 December 2012 the chairman of the review panel presented its report and recommendation.  The respondents invited representatives of Tarves and Udny Community Councils to make a presentation.  The representatives outlined the position which had been set out in their written submissions to the panel (7/22 of process) and gave a PowerPoint presentation (incomplete printed paper copies of which are found at 7/21 and 6/6 of process).  The minutes of the meeting record that following the presentation members of the respondents asked questions

“related to the home delivery service provided by Tarves Pharmacy, additional safety checks of pharmacy dispensing and the availability of local transport services”.

 

The chairman of the review panel advised the respondents that the panel had difficulty deciding the proportion of the population for which there was a serious difficulty.  He confirmed that the panel had been aware of the delivery service which the pharmacy offered to provide to all patients, but had concluded that on balance it did not outweigh the issue of serious difficulty.  The respondents’ chairman proposed that the report’s recommendation be followed.  The proposal was approved by a majority vote (11 for, 8 against, with one abstention).

[14]      On the basis of the material placed before me and the submissions made it appears that neither the review panel nor the respondents intimated to the petitioners that a review was being undertaken. They were not informed of the gist of the new material submitted to the panel.  They were not invited to make submissions to the panel or the respondents during the course of the review process.

 

Follow-on from the decision
[15]      The minutes of the respondents’ meeting of 4 December 2012 were approved at their meeting of 5 February 2013.  They were placed on the respondents’ website in about the middle of that month.  By letter dated 25 March 2013 (6/2) solicitors acting on behalf of Community Pharmacy Scotland (”CPS”) submitted a request to the respondents in terms of section 1 of the  Freedom of Information (Scotland) Act 2002 seeking information held by them relating to the decision and the decision-making process.  The respondents responded to that request by letter dated 17 May 2013 (6/3) enclosing “the first instalment of the papers requested”.  A second instalment of papers was sent under cover of a letter dated 12 June 2013.  By letter dated 10 July 2013 (6/4) the solicitors for CPS wrote again to the respondents.  CPS explained that they represented pharmacy contractors who had been affected by the decision.  CPS requested a “formal review”.  They indicated that they believed “our client has strong grounds on which to raise a petition for judicial review”.  The letter set out the grounds in some detail. It concluded:

“As noted above, we have advised our client that it would have grounds to raise a petition for judicial review of the Board’s decision at the Court of Session. However clearly resort to litigation over this issue is in neither party’s interest and it would be preferable if the issue could be resolved amicably. Therefore, on behalf of our client, we hereby request that the Board:

1.  considers the potential illegality, irrationality and procedural impropriety outlined above which are intrinsically connected with the Board’s decision; and

2.  sets the Board’s decision aside.”

 

The respondents were asked to respond by 24 July 2013.

[16]      By letter dated 17 October 2013 (6/5) the respondents replied to the letter of 10 July 2013.  The respondents did not accept any of the criticisms of the decision, but indicated:

“I would also point out that there was agreement at the Board meeting on 4 December 2012 that a wider review of difficulty of access to pharmaceutical services would be undertaken as part of the Board’s pharmaceutical care service planning process. Planning for that review has already begun. The review will include consideration of existing arrangements where the NHS Board has requested dispensing by GP practices (including those services provided by HMG)…Given that this review is expected to report before the end of the 2013/14 financial year, it would appear to be neither (sic) CPS nor NHS Grampian’s interest to be involved in a Judicial Review until the outcome of NHS Grampian’s local review of all dispensing medical practices, including the Haddo Medical Group, is completed…

I would hope that you would agree it would be sensible to await the outcome of the Board’s review before any judicial proceedings were to be initiated.”

 

[17]      By letter dated 20 November 2013 (6/6) CPS’s solicitors expressed dissatisfaction with the adequacy of the Board’s response to grounds for judicial review which had been set out in the letter of 10 July 2013.  They indicated that their client was not minded to delay proceedings until the outcome of the Board’s more general review was reported. The letter concluded:

“Our client is prepared, however, to afford you the opportunity to respond to its request for detailed responses, set out above, prior to initiating proceedings.

 

Please therefore respond to this request… by 5pm on 4 December 2013 …”.

 

[18]      By letter dated 4 December 2013 (6/7) the respondents replied that in their view that they had already responded in appropriate detail, and that they would robustly defend any proceedings.  By letter dated 18 December 2013 (6/8) CPS’s solicitors indicated that a decision whether to proceed with judicial review would be taken at CPS’s January board meeting.  The letter also contained a further FOI request.  By letter dated 21 January 2014 (6/9) the respondents provided certain information in response to the FOI request.  First orders in the petition were pronounced on 6 February 2014 and the petition was served shortly thereafter.

 

Grounds of challenge and the mora plea
[19]      The petitioners maintain that the decision of 4 December 2012 was unlawful in four respects.  First, the review panel and the respondents had misconstrued, and misapplied, paragraph 44.  Second, the decision was irrational.  Third, there had been a failure to observe the mandatory statutory requirement of consultation with the APC.  Fourth, the consultation and decision-making processes had been unfair to the petitioners.  The respondents resist each of these grounds, but in the first instance argue that the petitioners’ challenge is barred by mora, taciturnity and acquiescence.  I shall consider that plea first.  After that I will address the petitioners’ grounds of challenge in the following order (i) the construction and application of paragraph 44;  (ii) procedural fairness;  (iii) irrationality;  and, finally, (iv) failure to consult with the APC.

 

Mora, taciturnity and acquiescence
The respondents’ averments
[20]      In answer 18 of their answers (as adjusted) the respondents aver:

“The petitioners have made no challenge until this Petition which was not raised until a year after the decision complained of.  Correspondence which preceded the Petition was made on behalf of an organisation called Community Pharmacy Scotland. No representations were made by or apparently on behalf of the Petitioners which is the party with sufficient interest to make a challenge.  The Petitioners have delayed in their challenge.  The Petitioners remained silent about the challenge in circumstances in which it was reasonable to expect them to make a challenge if they were to do so. Further the delay in challenging was made in circumstances under which, as the Petitioners must have been aware, others would act and rely on the decision. Since April 2013 HMG and the Respondents have proceeded to organise their affairs on the basis of the authorisation for dispensing services to cover patients resident in Pitmedden. What is more HMG have dispensed medicines on the basis of this decision, which if reduced, would render their actions retrospectively unlawful and put into question the payments which they have received. In the circumstances the petitioners acquiesced in this decision by not making a challenge until 2014. Further and in any event esto correspondence from Community Pharmacy Scotland can be equiparated with correspondence from the separate persona of the Petitioners (which is denied) the challenge was not made until a letter from Dundas & Wilson dated 10 July 2013 when the arrangements averred had already been in place and relied upon for more than three months. The Petitioner would still be barred from insisting in this Petition by mora, taciturnity and acquiescence.”

 

The respondents’ submissions
[21]      Mr Ellis submitted that his plea of mora, taciturnity and acquiescence should be sustained.  The petitioners had been aware of the decision since 4 December 2012 (through Mr Craig’s attendance at the board meeting).  While there had been correspondence between the respondents and CPS in respect of the decision, the petitioners had not asserted their interest in their own right until much later.  They had not moved quickly enough.  Proceedings had not been raised until more than a year after the decision.  The decision had been acted upon.  Since April 2013 HMG had proceeded on the basis that they had authority to dispense to patients residing in Pitmedden.  Reference was made to Portobello Park Action Group Association v City of Edinburgh Council 2013 SC 184 at paragraphs 13-22; United Co‑operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831 per Lord Glennie at paragraphs 28-33;  Hendrick v Chief Constable, Strathclyde Police 2014 SLT 382 at paragraphs 36-60; and to authorities discussed in those cases, including Somerville v The Scottish Ministers 2007 SC 140.

 

The petitioners’ submissions
[22]      Mr Lindsay submitted that in the circumstances there had been no unreasonable delay by the petitioners.  The respondents could have had no doubt that CPS were corresponding in order to clarify matters on behalf of the petitioners.  The petitioners were the pharmacy who had lost out as a result of the decision.  CPS’ inquiries had started the month after the relevant minutes had been approved and published.  The matter had been far from straightforward, and there had been a need to ingather information and obtain advice.  Significant periods of the time which had elapsed between the decision and proceedings being commenced were attributable to delays on the part of the respondents.  The FOI request of 25 March 2013 was responded to in part on 17 May 2013 and in part on 12 June 2013.  CPS’ letter of 10 July 2013 had set out grounds for judicial review having regard to the effect of the decision on the petitioners, and had asked for a response.  The respondents had taken until 17 October 2013 to reply.  They had then indicated that a wider review was to be undertaken, and had suggested that it would be sensible for judicial review proceedings to await the outcome of that review.  In the letter of 20 November 2013 CPS had given the respondents an ultimatum to respond in appropriate terms by 4 December 2014 or face judicial review.  There had been no taciturnity or failure to speak out which gave rise to a legitimate inference of acquiescence.  The fact that HMG had continued from April 2013 to dispense to patients in Pitmedden (just as they had done before that date) did not give rise to an inference that the petitioners acquiesced in the decision;  nor was there prejudice of a kind which would have justified upholding the plea had there been unreasonable delay.  In addition to the cases referred to by Mr Ellis brief reference was also made to Pocock’s Trustee v Skene Investments (Aberdeen) Ltd & Others [2012] CSIH 61; Abdel-Rahman v University of Edinburgh [2013] CSOH 201; and M v State Hospitals Board for Scotland 2013 SLT 1001.

 

Decision
[23]      There is recent and authoritative guidance from the Inner House as to the principles that apply to a plea of mora, taciturnity and acquiescence in judicial review proceedings: Somerville v The Scottish Ministers, supra, per the Opinion of the Court delivered by the Lord President (Hamilton) at paragraphs 92-94;  Pocock’s Trustee v Skene Investments (Aberdeen) Ltd & Others, supra, at paragraphs 32-34;  Portobello Park Action Group Association v City of Edinburgh Council, supra, at paragraphs 13-16; Hendrick v Chief Constable, Strathclyde Police, supra, at paragraphs 44, 45, 54, 56, 57 and 58;  McCann v The State Hospitals Board for Scotland [2014] CSIH 71, per the Lord Justice Clerk (Carloway) at paragraph 57.  Mora means delay beyond a reasonable time.  What is a reasonable time depends upon all the circumstances.  Taciturnity is a failure to speak out in assertion of a right or claim when a reasonable person in the same position would have spoken out.  Acquiescence involves assent to what has taken place.  Whether it is to be inferred from a person’s inaction and silence is to be judged objectively by reference to how the matter would appear to the reasonable observer who was fully informed as to all the relevant circumstances.  For the plea to be sustained all three constituent elements must be established.

[24]      In the whole circumstances I am satisfied that there has not been excessive or unreasonable delay by the petitioners.  The respondents knew that CPS represented the interests of community pharmacy owners.  It was obvious from the outset that the pharmacy most seriously affected by the decision was the petitioners’.  That was the context in which CPS were corresponding with the respondents.  Having regard to that, and to the terms of the correspondence, the respondents could not have been in any real doubt that the petitioners were the particular pharmacy for which CPS were acting.  There was no authority on the correct construction of paragraph 44.  The construction of the provision was one of several thorny issues which had to be considered on the petitioners’ behalf.  Investigation had to be carried out, and clarification and advice had to be obtained, in order to put the petitioners and CPS (who are funding the litigation) in a position where properly informed decisions could be taken as to whether to proceed with a challenge.  The request for clarification came soon after publication of the board minutes.  The letter of 10 July 2013 was sent less than a month after the second instalment of papers was produced in response to the FOI request.  The respondents took more than three months to reply to that letter. When they did reply they suggested that it would be sensible to await the outcome of a wider review before any judicial review proceedings were intimated.  Looking at matters in the round I am clear that mora has not been established.  That is sufficient to dispose of the plea.  However, I also agree with Mr Lindsay’s submissions in relation to taciturnity, acquiescence and prejudice.  The reasonable observer, informed as to all the facts, would not have concluded that the petitioners remained silent when they ought not to have.  Nor would that observer have inferred that the petitioners had accepted the decision.

 

Construction and application of paragraph 44
The petitioners’ submissions
[25]      Mr Lindsay submitted that paragraph 44 enabled authorisation to be granted in relation to individuals, or classes of persons: but that in either case all of the persons in respect of whom authorisation was given had to be persons who will have serious difficulty obtaining drugs etc. from a pharmacist.  The panel and the board had not proceeded on the basis that all patients in the Pitmedden area fell into that category (nor could they rationally have done so on the material before them).  They had reached their conclusions on the premise that paragraph 44 authorisation could be granted in respect of all patients in the area as long as a proportion of those patients will have serious difficulty.  That was not a course which had been open to them on a proper construction and application of paragraph 44.

 

The respondents’ submissions
[26]      Mr Ellis submitted that paragraph 44 empowered health boards to grant authorisation in relation to a class or classes of persons who will have serious difficulty in obtaining drugs, medicines or appliances from a pharmacist.  His initial submission was that the panel, and in their turn the respondents, had concluded that all patients living within the Pitmedden area will have such serious difficulty having regard to public transport provision between Pitmedden and Tarves.  An obvious difficulty with that submission is that it is clear that was not the basis upon which either the panel or the respondents proceeded.  Both the panel and the respondents concluded that a “proportion” of patients would have such difficulty.

[27]      Having reflected on the matter overnight Mr Ellis submitted that paragraph 44 ought to be construed as allowing authorisation to be granted to a defined class of persons provided that a substantial proportion of the class will have serious difficulty.  He recognised that his suggested construction was not the ordinary and natural reading of paragraph 44;  but he maintained that it was a possible purposive construction, and that practical considerations and ease of administration favoured it.

 

Decision
[28]      In my opinion the language of paragraph 44 is clear and unambiguous.  It empowers health boards to require or authorise a contractor to supply drugs etc. to those of its registered patients who will have serious difficulty obtaining them from a pharmacist by reason of distance, inadequacy of means of communication, or other exceptional circumstances.  The provision does not empower boards to require or authorise a contractor to supply drugs to any patient who will not have such serious difficulty.

[29]      Here, literal and purposive constructions produce the same result.  The clear intention of the relevant provisions of the 1978 Act and the 2004 Regulations is that pharmaceutical services are generally to be provided by pharmacists on the pharmaceutical list;  but that exceptionally, where a patient would have serious difficulty in obtaining them from a pharmacist, the health board may require or authorise the patient’s doctor to supply them to the patient.  The literal construction gives effect to the legislative purpose:  the construction advocated by Mr Ellis is not faithful to it.  Rather, by reading paragraph 44 as conferring the wider power suggested, Mr Ellis’ construction would subvert the legislative purpose.

[30]      While the discussion before me focussed mainly on the power to authorise supply, it would be wrong to overlook the fact that paragraph 44 also empowers health boards to require a contractor to supply to qualifying patients.  If correct, Mr Ellis’ construction would mean that a contractor could be compelled by a health board to supply to patients who had no serious difficulty.  On any view that would be an extraordinary result.

[31]      Mr Ellis did not suggest that paragraph 44 was unworkable unless his construction was correct.  That would have been an untenable submission.  Properly construed the provision empowers health boards to require or authorise supply in respect of individual patients, groups of patients, or classes of patients.  In some cases all patients of a practice (e.g. by reason of distance from a pharmacy) might be the qualifying class. In other cases the relevant qualifying class or classes might include patients in a defined part of the practice area who have serious difficulty by reason of distance from a pharmacy;  or patients residing in defined areas who have serious difficulty because they are dependent on public transport to travel to a pharmacy and public transport provision is inadequate; or patients whose mobility is impaired by reason of age or other bodily impairment.  These are simply possible examples.  In each case it is for the health board to define the relevant qualifying class or classes of persons.  The important point is that a requirement or authorisation should only be made in respect of those whom the board is satisfied will have serious difficulty.  It simply will not do for a board to proceed on the basis that they find it administratively easier or more convenient to take an “all or nothing” approach in respect of a practice area.  That would be to ignore the terms of paragraph 44.  It would result in them requiring or authorising supply to patients who were not qualifying patients.

[32]      It follows that in granting the authorisation which they did on 4 December 2012 the respondents misconstrued and misapplied paragraph 44.  As a result the authorisation granted to HMG to supply to all patients within the Pitmedden practice area was ultra vires and unlawful.

 

The consultation and decision-making processes
The petitioners’ submissions
[33]      Mr Lindsay submitted that the consultation and decision-making processes had been unfair to the petitioners.  They had not been informed of the setting up of the review panel. They had not been made privy to the new matters which the panel was considering.  The petitioners’ position fell to be contrasted with the position which the panel and the board took towards the community councils.  They had been invited to address the panel and the board orally and in writing.  Once the decision had been taken by the respondents voluntarily to embark upon a wider consultation process than paragraph 44 obliged them to undertake, it was incumbent upon them to ensure that the consultation and decision‑making processes were conducted fairly.  They were not.  The petitioners had had a clear interest in the subject‑matter of the review.  They had been given no opportunity to make submissions, let alone informed submissions. Reference was made to R (Save Our Surgery Limited) v Joint Committee of Primary Care Trusts [2013] EWHC 439 (Admin), [2013] Med LR 150, per Nicola Davies J at paragraphs 15-27, and the authorities there discussed.

 

The respondents’ submissions
[34]      Mr Ellis accepted that the petitioners had not been invited to make submissions to the panel or the board.  He stressed that matters did not fall to be approached as if the petitioners and the community councils had been opposing parties in adversarial proceedings.  He contended that the petitioners must have been aware of the review panel’s existence.  If they had been aware of that then they were likely also to have been aware of the focus on realistic journey times by public transport.  What was clear was that they had been aware of the board meeting of 4 December 2012 – Mrs Craig’s husband had been one of the members of the public who had observed it.  The review panel’s report had been available on the respondents’ public website in advance of the meeting.

 

Decision
[35]      R (Save Our Surgery Limited) v Joint Committee of Primary Care Trusts, supra contains a helpful discussion of authorities having a bearing on procedural fairness in this context (including R v North East Devon Health Authority, ex parte Coughlan [2001] QB 213 at paragraphs 108, 112;  Devon County Council v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin) per Ousley J at paragraphs 68, 70;  R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 per Lord Mustill at p. 563(e); Bushell v Secretary of State for the Environment [1981] AC 75 per Lord Diplock at p. 95; R (Eisai Limited) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438 per Richards LJ at paragraphs 26, 27, 65 and 66;  R (Easyjet) v Civil Aviation Authority [2009] EWCA Civ 1361 per Maurice Kay LJ at paragraphs 74 and 75; and Kaioa & Others v West & Another [1985] 159 CLR 550 per Brennan J at p. 628).  At paragraph 27 Nicola Davies J provides a summary of principles which may be relevant in cases of this sort.  It is a very useful checklist, but, of course, it is neither prescriptive nor exhaustive:

“27 In considering the authorities cited by the parties I have paid particular attention to and given weight to those which consider a challenge to the consultation process. From the authorities the following principles can be identified:

i) The issue for the court is whether the consultation process was “so unfair it was unlawful” – Devon County Council ;

ii) Lawful consultation requires that: i) it is undertaken at a time when proposals are still at a formative stage; ii) it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; iii) adequate time must be given for this purpose; iv) the product of the consultation must be conscientiously taken into account when the ultimate decision is taken;

iii) Disclosure of every submission or all of the advice received is not required. Save for the need for confidentiality, those who have a potential interest in the subject matter should be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made. The degree of significance of the information is a material factor;

iv) The fact that the information in question comes from an independent expert or from the consultee is relevant but it is a combination of factors including fairness, the crucial nature of the advice, the lack of good reason for non-disclosure and the impact upon consultees which are to be considered upon the issue of fairness;

v) What fairness requires is dependent on the context of the decision; within that the court will accord weight and respect to the view of the decision-maker;

vi) If the person making the decision has access to information but chooses not to consider it, that of itself, does not justify non-disclosure; it will be for the court to consider the reason for non-disclosure;

vii) A consultation process which demonstrates a high degree of disclosure and transparency serves to underline the nature and importance of the exercise being carried out; thus, non-disclosure, even in the context of such a process, can limit the ability of a consultee to make an intelligent response to something that is central to the appraisal process;

viii) The more intrusive the decision the more likely it is to attract a higher level of procedural fairness;

ix) If fairness requires the release of information the court should be slow to allow administrative considerations to stand in the way of its release.”

 

[36]        In the whole circumstances I am in no doubt that the review and decision-making processes were so unfair to the petitioners that they were unlawful.  I agree with Mr Lindsay’s submissions.  Once the decision was taken to have a review, and to embark upon consultation with some of the interested parties, the review and the decision-making processes had to be conducted fairly.  The panel and the respondents’ lack of engagement with the petitioners during the review (and the lead-up to it) stands in stark contrast to the high level of their engagement with the community councils.  It was plain that the petitioners had a very material interest in contributing to the review process.  A decision to authorise supply to Pitmedden patients would obviously be detrimental to the petitioners’ business interests. It would be a significantly intrusive decision.  Despite this, the petitioners were not invited to make submissions.  Indeed, they were not even informed of the existence of the review.  (I accept that they were not otherwise aware of it until shortly before the board meeting of 4 December 2012).  Given that the impetus for the review (and a crucial issue which the panel had to assess) was the new evidence and submissions from the community councils, fairness required that the petitioners (i) were informed of the gist of the new material;  and (ii) were given an opportunity to make submissions in relation to it before the panel reached its conclusions and made its recommendation.  That was not done.  The unfairness to the petitioners was not cured by Mr Craig’s presence as an observer (without any right or invitation to participate) on 4 December 2012.

 

Was the decision irrational?
[37]      In light of my conclusions that the respondents misdirected themselves in construing and applying paragraph 44 it is not necessary for me to decide whether the decision was Wednesbury irrational (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1946] 1 KB 223).  However, in deference to the arguments which were advanced I shall provide a brief indication of how I would have approached matters if, contrary to my view, the respondents were indeed entitled to proceed on the basis that authorisation to supply all Pitmedden patients could be granted provided a substantial number of them had serious difficulty.

[38]      Mr Lindsay’s argument focussed on the facts (i) that neither the panel nor the board identified the proportion of patients with serious difficulty, or what they understood to constitute serious difficulty; (ii) that neither explained why the free daily delivery service would not remove serious difficulty for those patients; and (iii) that the decision could not be reconciled with the decision of the respondents’ PPC to refuse the application for a pharmacy in Pitmedden on the grounds that the existing provision of pharmaceutical services in the neighbourhood of Pitmedden was adequate.

[39]      I do not regard points (i) or (iii) as having much substance.  I think it correct to infer that the respondents proceeded on the basis that the substantial proportion identified as having serious difficulty was the proportion identified by the community councils as being reliant on public transport.  The PPC decision and the decision of 4 December 2012 were made in the context of discrete and different regulatory regimes; the applicable tests were not the same, and the relevant facts and circumstances did not coincide.

[40]      On the other hand, the lack of explanation as to why patients would have serious difficulty notwithstanding the availability of the free delivery service is unfortunate, and causes me significant hesitation.  The provision of such an explanation would have resulted in a much more transparent decision:  and (assuming the explanation was a reasonable one) the court and all interested parties could have had much more confidence as to the decision’s rationality (cf. Lutton v General Dental Council 2011 SLT 671 at paragraphs 48-55 and the authorities there discussed;  [2011] CSIH 62 at paragraph 15).  However, I am also mindful that the respondents’ task involved questions of fact and degree and required evaluative judgement.  If the scenario assumed is that they were entitled to construe and apply paragraph 44 as they did, I do not think it can be said that there could not be a reasonable basis for arriving at their conclusion.  Had the issue of inadequacy of reasons been critical to the decision I would have wished to have been addressed more fully on the relevant authorities.  As it is, while I incline to the view that my reservations on this point are not sufficient to cause me to hold that the decision was irrational, I prefer to reserve my opinion on the matter.

 

Was there a failure to consult with the APC?  If so, did it render the decision invalid?
The petitioners’ submissions
[41]      Mr Lindsay submitted that paragraph 44(2) contained a mandatory requirement that the health board consult with the APC before satisfying itself that a requirement or authorisation should be made.  The respondents had failed to comply with it.  While a representative of the APC (Mr Manson) had been a member of the review panel there was no indication that the APC had been properly consulted.  Even if Mr Manson had expressed views to the panel, there was no record of them in the panel’s report.  Even more fundamentally, there was no proper basis for concluding that the collective view of the APC had been sought.  It could not be assumed that Mr Manson’s views represented that collective view: Martyn Imrie, Petitioner 2000 S.C.L.R. 364 per Lord Maclean at p. 367C-E.

 

The respondents’ submissions
[42]      Mr Ellis submitted that the consultation requirement had been complied with. Mr Manson had been appointed to the review panel to that end.  That had been a perfectly adequate way of satisfying the requirement:  cf. Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 per Lord Morris at p. 1124A-F.  A letter from the APC dated 20 April 2014 (7/20) confirmed that Mr Manson represented the view of the APC at the review panel.  As it happened a further member of the APC was a board member of the respondents and had taken part in the meeting of 4 December 2012.  Imrie was distinguishable - it had been accepted there that the statutory consultee (a school board) had not been consulted.  In those circumstances it was unsurprising that the court had concluded that consultation with two individuals who also happened to be members of the board did not fulfil the statutory requirement.  Even if, strictly speaking, the letter of the law had not been fully complied with, there had in the circumstances been very substantial compliance with the statutory requirement.  Properly construed, the legislative intent was not that an authorisation should be invalid because of a breach of the sort suggested.  In the circumstances it would not be appropriate to hold that the authorisation was a nullity.  Reference was made to R v Soneji [2006] 1 AC 340, per Lord Steyn at paragraphs 14, 15 and 23, and per Lord Cullen at paragraph 52.

 

Decision
[43]      I am satisfied that the consultation requirement in paragraph 44(2) was complied with. Lord Maclean’s observations in Imrie concerned a very different scenario.  Mr Manson’s membership of the panel was qua representative of the APC.  That was a method of consulting with the APC which it was open to the respondents to take: Port Louis Corporation v Attorney-General of Mauritius, supra, per Lord Morris at p. 1124A-F.  It was a method which the APC were (and remain) content with.  The letter from the APC confirms that Mr Manson put forward the APC’s view to the panel.  (In the absence of such express confirmation the presumption omnia praesumuntur rite esse acta might well have been applicable).  Even if, contrary to my view, the consultation process did not technically comply with paragraph 44(2), I agree with Mr Ellis that there was substantial compliance; and that the provision does not envisage that invalidity should be the consequence in such circumstances.

 

Conclusions and disposal
[44]      It follows that the decision of 4 December 2012 was unlawful for two reasons.  The respondents misdirected themselves as to the proper construction and application of paragraph 44;  and the review and decision-making processes were conducted in a manner which was procedurally unfair to the petitioners.  The petitioners’ challenge to the decision is not barred by mora, taciturnity and acquiescence.

[45]      Parties were agreed that in the event of the decision being held to be unlawful a declarator to that effect was likely to be a sufficient remedy.  They fully expected that the respondents would take appropriate action to revisit the decision in light of the court’s ruling.  Mr Lindsay recognised that granting reduction might give rise to administrative difficulties for the respondents and HMG.  He suggested that declarator should be pronounced but that a by order hearing should be fixed in case, contrary to expectations, the respondents failed to take appropriate steps. I am content to follow that course.

[46]      I shall (i) sustain the petitioners’ second plea‑in‑law;  (ii) repel the respondents’ first to fifth pleas‑in‑law;  and (iii) sustain the petitioners’ first plea-in-law in so far as relating to the unlawfulness of the decision, and pronounce decree of declarator that the decision was unlawful in so far as it required or authorised supply by the group to their patients in the Pitmedden area.  I shall continue the case by order to a date to be fixed.  I reserve meantime all questions of expenses.