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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 21
P1067/24
OPINION OF LORD LAKE
In the Petition of
ABBEY CHEMISTS LIMITED
Petitioner
for
Judicial Review of a decision of the National Appeal Panel dated 10th September 2024 to
refuse the Petitioner's appeal against the decision of the Pharmacy Practices Committee of
Greater Glasgow and Clyde Health Board issued on 20th June 2024 to grant TC Trading
(Scotland) Limited's application to be included on Greater Glasgow and Clyde Health
Board's Pharmaceutical List in respect of premises at 4 Blackford Road, Paisley PA2 7EP
Petitioner: M Lindsay KC; Freeths LLP
Third Respondent: J Bradley; Lay representative
25 February 2025
[1]
The petitioners seek judicial review of a decision of the National Appeal Panel dated
10 September 2024. They are the first respondents to the petition. The decision in question
concerned refusal of an appeal which has been made by the petitioners from a decision of
the Pharmacy Practices Committee of Greater Glasgow and Clyde Health Board. They are
the second respondents to the petition. The PPC had made their decision on 20 June 2024
granting an application made by TC Trading (Scotland) Limited to be included in the
Board's Pharmaceutical List. The applicants are the third respondents to his petition. The
first respondent and the second respondent did not appear when the matter called for a
2
substantive hearing before me which meant that the only opposition came from the
applicants whose admission to the list had been successful. Both the petitioner and the third
respondent had prepared notes of argument which they adopted as part of their
submissions and which I have taken into account.
Legal background
[2]
A party who wishes to be included in a Health Board's list of pharmaceutical
practices and thereby to be in a position to provide pharmacy services, requires to apply to
the Health Board. Their application is considered by the PPC. The procedures and criteria
for inclusion within the pharmaceutical list are specified in the National Health Service
(Pharmaceutical Services) (Scotland) Regulations 2009. In terms of the Regulation 5(10), an
application such as that made in this case may only be granted if the PPC:
"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."
There are various pieces of information which must be submitted by an applicant. One of
these is a Consultation Assessment Report ("CAR"). As the name suggests, this sets out the
results of a consultation exercise with potential users of the pharmaceutical services and
may be used as part of the assessment of adequacy.
[3]
In terms of paragraph 5 of Schedule 3 of the Regulations, an appeal may be taken
from the decision of the PPC to the National Appeal Panel in circumstances including those
specified in paragraph 5(2B). That paragraph states:
"5(2B) The circumstances are--
(a)
there has been a procedural defect in the way the application has been
considered by the Board;
3
(b)
there has been a failure by the Board to properly narrate the facts or
reasons upon which their determination of the application was based; or
(c)
there has been a failure to explain the application by the Board of the
provisions of these Regulations to those facts."
Paragraph 5 of the Schedule contains the following provisions in relation to appeals to the
NAP which are relevant:
"5(5) The Chair, after considering the notice of appeal and the decision of the Board,
shall-- ....
(b)
remit the decision back to the Board for reconsideration if the Chair is of
the opinion that any of the circumstances in sub-paragraph (2B) have
occurred"
"5(7) Where the Chair remits an application back to the Board for reconsideration--
(a)
the Chair shall give to the Board such advice as appears to the Chair to be
desirable with a view to remedying the defect or failure that has led to
the decision to remit;
(b)
the Chair shall send a copy of the remitted application and the advice
issued to the Scottish Ministers; and
(c)
the Board shall reconsider the application."
Factual background
[4]
On 8 January 2023, TC Trading applied to the PPC for admission to the Greater
Glasgow and Clyde Pharmaceutical List. At a meeting on 11 September 2023, the PPC
granted the application. On 22 October 2023, the petitioners appealed that decision to the
NAP and, on 12 June 2024, the appeal was upheld. The matter returned to the PPC and, on
20 June 2024 the reconvened PPC again decided to grant the application. That decision was
in turn appealed by the petitioners to the NAP and it is the decision of the NAP refusing the
appeal that the petitioners seek to review. In order to examine the decision of the NAP it is
necessary also to consider the decision of the PPC. For the petitioners to obtain the remedies
they seek they require to demonstrate that there was a flaw in the decision of the PPC that
could have been corrected by the NAP and that the NAP decision did not grant this remedy
and was itself flawed in a manner which renders it susceptible to judicial review.
4
First ground failure by PPC to reconsider the application
[5]
The first ground of challenge is summarised in the following averment in the
petition:
"The First Respondent [the NAP] failed to recognise that the PPC had merely
refreshed its original decision by providing further reasons in support of its original
decision and had not reconsidered the Application anew."
The petitioners contend that the failure by the PPC to consider the application anew was a
procedural defect on their part and that in not allowing the appeal in light of that, the NAP
had erred in law or acted unreasonably.
[6]
In the first appeal to the NAP there were three grounds of appeal. The second
concerned whether, when considering adequacy of provision, pharmacies in neighbouring
neighbourhoods should be taken into account and whether there had been an over reliance
by the PPC on the CAR and the third was whether the reasons stated by the PPC were
adequate. The appeal was allowed on the second and third grounds. In the decision by the
NAP of 12 June 2024 upholding the petitioners' appeal, the chair said the following in
relation to the disposal:
"5.1. For the reasons set out above I consider that the appeal is successful in respect
of Grounds of Appeal 2 and 3. I shall therefore refer the matter back to the PPC
for reconsideration.
5.2. In relation to Ground of Appeal 2, its reconsideration of the application should
be undertaken with reference to those other sources of evidence and
information and taking care not to over rely on the CAR.
5.3. In relation to Ground of Appeal 3 sufficient reasons need to be given when
reaching a decision."
[7]
When the matter came back before the PPC, an issue arose as to the approach to be
taken. The committee sought advice from the NHS Central Legal Office. The relevant part
of that advice was in the following terms:
5
"The NAP decision of 12 June calls for the PPC to be reconstituted to reconsider the
application. The NAP Chair upheld three substantive criticisms in the decision on
adequacy. The decision involved an over reliance upon the CAR. The PPC should
have taken into consideration the extent to which the CAR could be relied upon
given the changes in the area. The PPC must consider the pharmaceutical services
available in neighbouring neighbourhoods. The NAP Chair also found that the
reasoning was inadequate.
The task for the PPC is to go back to its decision on adequacy and reconsider the
application from there, taking close account of the three factors identified by the
NAP Chair. It is possible that the PPC did not give any consideration or sufficient
consideration to i. the extent to which the CAR could be relied upon given the
changes in the area or ii. the pharmaceutical services available in neighbouring
neighbourhoods; but it is also possible that the PPC did consider these things, it just
failed to narrate that it did so in its reasoning, which in any event, the NAP found it
was deficient. Whatever the situation was, the finding that there was an
over-reliance on the CAR seems to invite a rebalancing of the factors being
considered in relation to the application, and that suggests to me that this PPC's role
is to start again with their private session, consider and discuss all of the evidence
anew, and for the voting members to come to a decision on adequacy again, setting
out sufficient reasoning to explain the various strands of evidence which the PPC
had before it, explaining why evidence was given weight or not given weight, what
weight each piece of evidence was given and the reasoning behind the eventual
decision. The CAR must be sufficiently relied upon, but not overly relied upon, and
how it was taken into account needs to be set out in the reasoning in relation to each
aspect of the decision making."
[8]
Having received this advice, the PPC went on to make a decision granting the
application. In response to the second PPC decision, the petitioners again appealed to the
NAP. There were two grounds of appeal stated as follows:
"(b) there has been a failure by the Board to properly narrate the facts or reasons
upon which their determination of the application was based; and
(c)
there has been a failure to explain the application by the Board of the
provisions of these Regulations to those facts."
It is apparent that they did not rely on sub-paragraph (a) of paragraph 5(2B) of Schedule 3
quoted above - the presence of a procedural defect.
6
Submissions
[9]
While it is clear from the narrative above that the effect of paragraph 5(5) of
Schedule 3 to the Regulations and the decision of the NAP was that the PPC were required
to "reconsider" their decision, the issue that arises is what this entails. The petitioners
submit that it requires the affected parts of the decision to be made anew with the PPC
addressing its minds to the merits of the application. Using the definition of the
neighbourhood from their earlier decision, the PPC would have to consider again whether
there was adequate provision at present and, if not, whether it was necessary or desirable to
grant the application. They relied on the judgment of Fordham J in R (on the application of
There, he said that his earlier decision quashing the Ombudsman's decision required that
there be a further "fair and reasonable decision on the merits" although he recognised that
in that new decision the Ombudsman might say the same things as in the decision that was
quashed (paragraph 21). The petitioners contend that in this case the PPC merely relied on
the earlier decision and provided some new reasons for taking it. In this regard, the
petitioners referred to paragraph 15.9 of the minutes which stated:
"The PPC revisited the evidence to familiarise themselves again with the case and
explored their original reasoning. It was agreed that all of the content in the original
decision formed part of the refreshed decision."
The petitioners placed emphasis on the second sentence in that passage. It was submitted
that this indicated that the PPC had not made a new decision on the merits and had just
adhered to the old decision with some additional reasons. It was said that this did not
amount to a "reconsidering" of the decision. The petitioners relied also on advice obtained
by the PPC from the CLO. It was not said that this had any particular status in terms of
7
tying the hands of the PPC but it was said that it was correct and ought to have been
followed.
[10]
The respondent submits that the petitioners are taking an approach which is
unreasonably semantic and that terms such as "refreshed", "revisited" and "reconsidered"
would be regarded as equivalent by the PPC which is not made up of lawyers. The
respondent submits that the PPC had done what was required of them.
Decision
[11]
It is necessary to consider what the PPC actually did when the matter came before
them for the second time. The members of the PPC on that occasion were the same as those
on the earlier one but this was clearly what had been intended by the NAP when stating that
additional reasons were to be given for the earlier decision. Paragraph 15.1 of the minutes
which relate to the occasion on which it came back before the PPC record that the
application had been remitted back to them for reconsideration on the basis that two of the
grounds of appeal were upheld. They considered the advice that had been obtained from
the CLO and recognised that the matter had been referred back for "reconsideration".
[12]
As noted above, paragraph 15.9 of the minutes records that the PPC revisited the
evidence to familiarise themselves with the case and that they "explored their original
reasoning". An exploration of the evidence indicates that this was more than a simple
adoption of the earlier decision. In addition, the committee did not move straight from that
examination of the earlier decision to the conclusion of their reasoning. Instead, they noted
that the "neighbourhood" as defined in their first decision was larger than had been
contended for by the applicants and therefore included a larger population. They noted that
the information obtained in the CAR would have reached people within the area covered by
8
their extended definition of neighbourhood and beyond. They noted there was a need to
consider whether the CAR was still valid in view of the change to the neighbourhood as
defined. In paragraph 15.10 of the minute, the PPC did consider the change in boundary
and its effects but concluded that they could still be relied upon. That was a conclusion that
it was open to them, as an expert tribunal, to make.
[13]
In paragraph 15.11, the PPC considered that in relation to the CAR there has been
numerous methods to engage as many respondents as possible beyond the original
neighbourhood decision. They went on to consider what evidence was available to them
other than the CAR. They noted that one pharmacy currently supplied the "bulk" of the
service to the neighbourhood and set out the basis which this service might be considered
inadequate. They conclude that the existing service provision is inadequate but go on to
consider services that might be provided by pharmacies in neighbouring neighbourhoods.
The petitioners have made challenges to a number of the elements of the decision of the PPC
in this regard and they are considered below. What matters for consideration of the first
ground of challenge is that it was only after consideration of these issues that the committee
went on to consider adequacy.
[14]
The minutes disclose that the committee members applied their minds to the
appropriate test and made a decision afresh as to the adequacy of existing provision. The
decision of the NAP had required them to consider the weight that they placed on the joint
consultation exercise and it is clear that they did so. They also considered the information
about provision of services from pharmacists located outside the neighbourhood. Viewed in
context, paragraph 15.9 appears to mean that the reasoning of the original decision has been
reconsidered and the conclusion reached that it remained valid. The fact that this is
legitimate was recognised in Ross. Rather than set out all the reasoning again, it was
9
incorporated by reference. It is important to note, however, that the consideration by the
PPC does not end with the examination of the earlier decision. As noted above, they then go
on to consider a number of additional matters. So, when paragraph 15.13 of the minute
narrates that the PPC were satisfied that the service was not adequate, that is clearly a new
decision. This is followed by paragraph 15.15 and 15.16 which are to the same effect. It may
be noted that while the original decision had been that it was "necessary and desirable" to
grant the application to ensure adequate provision (paragraph 11.23), the later decision was
solely that it was necessary (paragraph 15.16). It is therefore apparent that even if a high test
is adopted for what was required of the PPC, they had carried out what was required of
them and given a fresh decision.
[15]
On that basis, it does not appear that the decision of the PPC was flawed in the way
the petitioners contend. However, there is a further problem in relation to this ground of
challenge. The challenge is to the decision of the NAP. It is therefore necessary to consider
what issues were put before the panel. It is apparent from the letter seeking to appeal the
second PPC decision that it was not contended that there had been a procedural flaw in the
second decision of the PPC. There was not a statement that the decision was vitiated
because it did not amount to a reconsideration. In that situation, it cannot be said that no
reasonable appeal panel would have failed to quash the decision of the PPC. On both bases,
the first ground of challenge is rejected.
[16]
The petition includes a ground of challenge that the NAP failed to provide adequate
reasons for its own decision. It was said that this was, in effect, ancillary to each of the other
submissions which allege irrationality. It was contended that if the court was to conclude
that it was open for the NAP to reach the decisions they did, they had nonetheless failed in
providing adequate reasoning for so doing. In relation to what was required by way of
10
reasons I was referred to the decisions in South Buckinghamshire DC v Porter (No 2),
[2004] 1 WLR 1953, and United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical
Lists, 2007 SLT 831. I have therefore considered the reasoning of the NAP in this matter and
consider that it is sufficient. The decision of the panel refers to paragraphs 15.15 to 15.21 of
the minute of the committee decision. Those are the ones which I consider above are
sufficient to indicate that the matter was considered afresh by the committee. An informed
reader would not be left in doubt as to the basis of the decision. It follows that there are
sufficient reasons set out in the decision of the panel.
Second ground errors in assessment of adequacy
[17]
The second ground of challenge considers the assessment of the adequacy of
provision that was carried out by the PPC. Once again, it is claimed that the decision of the
NAP was irrational or it did not give adequate reasons for its decision to refuse the appeal.
There were a number of different elements to this challenge and it is most convenient to
consider them in turn.
[18]
Firstly, it was contended that the PPC had erred in one of the early statements in
relation to this to the effect that the petitioner provided the "bulk" of the services to the
neighbourhood (minutes, paragraph 15.12). It was contended that this was incorrect and,
because the PPC had based its conclusion that provision was inadequate principally on the
basis that the provision by the petitioners was inadequate, this vitiated the decision as a
whole.
[19]
The word "bulk" does not have a particular legal meaning or significance. A
dictionary definition would be that it simply means the majority. While the petitioner
submits that it was incorrect to say that they provided the "bulk" of the service, there is no
11
information before me that would enable me to conclude that the petitioners in fact
provided less than 50% of the service. The petitioners appear to rely on the fact that other
pharmacies were noted also to be supplying in the area. That, however, is not inconsistent
with the petitioners supplying the majority. In any event, it is not apparent that this is a
basis on which it can be said that the decision of the panel was irrational. The assessment of
the current service provision was a matter for the committee as an expert tribunal. The test
to find a decision irrational is always a high one. Precisely how high depends on the
context. In some situations, the courts have become more willing to undertake a more
exacting scrutiny of what has taken place. It may therefore be said that there is a range or
spectrum of degrees of scrutiny to which a decision might be subject. The decision here,
however, is the decision of a specialist tribunal. As such it is at the end of the spectrum
where the courts are least willing to interfere and will all do so only in the event that the
decision is plainly wrong or it is manifestly appropriate to intervene (Professional Standards
Authority for Health and Social Care v Nursing and Midwifery Council, 2017 SC 542, para [25]).
So, in so far as it was contended by the petitioners that the reasoning of the PPC contained a
"huge leap", this is not a matter with which the panel would be entitled to interfere and they
cannot be considered to have erred in not doing so.
[20]
The petitioners contended that the PPC erred and had conflated customer
satisfaction with the adequacy of provision, that it was said that the provision of 24-hour
delivery technology had resulted in the service provision being inadequate and that the
NAP has erred in not allowing an appeal on this ground. The PPC minutes do not disclose
any such conflation. Paragraph 15.12 noted that steps had been taken by the petitioners to
increase dispensing volume but the PPC considered that the effect of that had been to
sacrifice other areas of their business model. It was that sacrifice which had affected the
12
provision of services to patients and led to patient dissatisfaction. Patient satisfaction is
something that was considered in the CAR and is legitimate for the PPC to take into account
in their assessment of adequacy. The NAP cannot be criticised for not sustaining the appeal
on that basis. Insofar as it is contended that the committee took comments by
Mr Mohammed, the principal of the petitioners, out of context, the evaluation of evidence is
something that is entirely within the remit of the committee and is not something which can
be challenged on appeal to the NAP or a judicial review to this court.
[21]
The petitioners noted that paragraph 15.11 of the minute contained consideration of
the contents of paragraph 11.9 of the minute which recorded part of the deliberations on the
original decision. Paragraph 15.11 stated that the joint consultation exercise was not
restricted to newspaper advertisement. It said also that the committee was satisfied that
there are numerous methods to engage with as many respondents as possible beyond the
existing neighbourhood definition. It was said that this was contradictory of what was
contained in 11.9. In my view on a proper reading there is in fact no conflict and what
paragraph 15.11 is saying is in essence a correction of paragraph 11.9. That is, while
paragraph 11.9 appears to indicate a restricted scope for the CAR, having revisited the
matter, the PPC do not consider this to be the case. Such a reading is required to be
consistent with the statement in the final sentence of paragraph 15.11 that, "The PPC were
satisfied that there were numerous methods to engage as many respondents as possible
beyond the original neighbourhood definition." That was a decision that was open for the
PPC to make as the expert tribunal. I do not consider that the NAP can be said to have acted
irrationally in not finding fault with the decision of the committee in this regard.
[22]
As noted above, part of the original NAP decision required the PPC to have regard to
other sources of evidence in relation to provision of services by other providers. It is
13
apparent that the PPC did so. The petitioners claimed that on the basis of paragraph 15.14 of
the minute, the reason that this evidence has been accorded no weight was that it was said
that the contractors were not represented at the hearing. The petitioners noted that out of
six possible pharmacies, four were in fact represented and that this indicated an error which
should have been noted.
[23]
I do not consider that this is the correct way to read paragraph 15.14 of the minute. It
is in the following terms:
"The PPC were mindful that the weight they could give to the provision of
pharmaceutical services to the neighbourhood was restricted to those contractors
who had attended the original oral hearing. Although the PPC were provided with
information about the other pharmacies, the weight they could place on this was
restricted due to the absence of these representatives at the original oral hearing;
without representation at the oral hearing there's no opportunity for evidence to be
presented and/or challenged."
Given its natural meaning, this indicates that while the weight that could be placed on
submissions from parties who are not represented was limited, weight would be accorded to
those who were represented. In relation to the issue of what weight could be given to the
alternative provision of supply, it is relevant to note that in both paragraph 15.20 and 11.8 of
the minute it was noted that while it had been claimed that other pharmacies had the
capacity to increase provision, no evidence had been provided to the PPC to support that
claim. The PPC are the expert body charged with responsibility for making a decision about
these factual matters and it would not have been appropriate for the NAP to open up and
reconsider these factual issues. The decision of the NAP can accordingly not be faulted on
this basis.
[24]
A further challenge from the petitioners noted that there is a two-stage test in the
Regulations to be considered before an application is granted. The test had been considered
in Lloyds Pharmacy Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists, 2004
14
SC 703. It was submitted for the petitioners that the fact that an inadequacy in provision has
been identified does not mean that admission to the list ought automatically to be granted.
It was said that in that situation, it is necessary that the PPC go on to consider the merits of
the particular premises to which the application relates. It was said also in this context that
it was open to the committee to consider whether another application might be made by a
different party for different premises which would be more advantageous.
[25]
The argument advanced by the petitioners in this regard does not accord with the
wording of the Regulations. They state that the application may be granted "only if it is
necessary or desirable in order to secure adequate provision of pharmaceutical services in the
neighbourhood" (emphasis added). The interaction of the words "necessary" and "desirable"
was considered by Lord Drummond Young in the Lloyds Pharmacy case to which I was
referred. He indicated that "necessary" meant that the additional premises would do no
more that make up an existing shortfall. Allowing an application might, however, be
"desirable" to allow for some over-provision in the short term in order to secure adequacy
for the future. What is noticeable is that both of these terms relate to the assessment of
supply against demand. The term "desirable" is not intended as part of an evaluation of the
quality of the application other than in relation to the ability to meet the demand. While the
circumstances of a particular application might be taken into account to assess whether it is
capable of meeting demand and is therefore necessary or desirable, it does not appear from
the Regulations that there is a general requirement to consider the desirability of any
particular premises once the test of necessity or desirability is met. So, although the original
decision did consider the merits of the premises in respect of which the third respondents
sought admission to the list, this was not necessary. Accordingly, the NAP did not fail in
not allowing the appeal on this basis.
15
[26]
The petitioners argued that the consideration by the PPC of the CAR was flawed in
two respects. The first was that the neighbourhood identified in the CAR was different from
that identified by the PPC and the second was that the CAR was out of date. These were the
two grounds of appeal which had been specifically upheld by the NAP in the first appeal.
In addition, the original NAP decision had warned against over reliance on the CAR.
[27]
The PPC expressly considered the fact that the boundaries of the neighbourhood as
defined by them were not the same as those that had been defined by the applicant and used
in the joint consultation exercise. It was in light of that, that they carried out the revisiting of
paragraph 11.9 considered above. However, no doubt in view of the instruction from the
NAP, the PPC did not rely solely on the CAR. Having noted the CAR findings, the PPC
tested the results against what the committee members had observed for themselves. This
included the fact that there were queues outside the petitioners' pharmacy, that it had no
capacity to extend its services and that admissions had been made by its proprietor,
Mr Mohammed, at the original hearing. On that basis of all these matters, they decided that
the provision of pharmaceutical services was inadequate. As the specialist tribunal charged
with the responsibility of evaluating adequacy, this was a decision that they were entitled to
make and the NAP cannot be faulted for not upholding a challenge in respect of it. As with
the other grounds, the submission was made that even if the decision could not be said to
be irrational, there are inadequate reasons for it at that the petitioner is left in real and
substantial doubt as to what the basis of the decision was. I do not agree. The minutes
make it clear that regard has been had to the CAR, that there has been consideration of
whether the CAR is representative, and that other factors have been taken into account. The
requirements stated in South Bucks Council have been met.
16
[28]
The NAP noted that in this regard the petitioners were, in effect, seeking to advance
an argument in support of a ground of appeal that had not been stated - that the relevant
test had been misapplied (paragraph 4.7). The panel emphasised that the conclusions
reached by the PPC and the standard or weight to be attached to the information were
matters for the PPC and that the challenge by the petitioners was in essence that they
disagreed with the conclusions of the PPC. That was regarded by the panel as not being a
valid ground of appeal (paragraph 4.8). On the basis of the foregoing, not only was that
decision open to them, it was a correct decision.
Conclusions
[29]
On the bases that I have indicated above, I do not consider that any of the challenges
made by the petitioners to the decision of the NAP should succeed. Accordingly, I sustain
the second plea-in-law for the respondents, repel the pleas-in-law for the petitioner and
refuse the petition.
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