Bestway National Chemists Ltd (t/a Well Pharmacy), R (On the Application Of) v The Welsh Ministers

When assessing pharmaceutical provision, a decision-maker may consider both local demand and wider demand across the health-board area. An increase in wider demand may reasonably be treated as partly supporting demand in the locality, even where services may transfer following the relocation of medical practices. The decision-maker must assess the effect on patients and the overall distribution and accessibility of services, including opening hours. A decision to approve an additional pharmacy is not irrational merely because it involves additional expenditure, provided the relevant costs have been considered. Reasons must address the principal controversial issues and enable the reader to understand the decision.

The claimant sought judicial review of the Welsh Ministers’ decision on three connected pharmaceutical-services applications concerning premises in Merthyr Tydfil. The decision allowed an application for a new pharmacy at the Keir Hardie Health Park, refused applications to relocate existing pharmacies there, and thereby preserved existing provision in the town centre and at the Cyfarthfa Retail Park.

The claimant challenged the approach to alleged overprovision in the Newmarket Walk neighbourhood, the evidential basis and reasons for that conclusion, and the alleged failure to consider the additional NHS cost of admitting a new pharmacy to the pharmaceutical list. The claim was heard at first instance.

1. The claim was dismissed. The Welsh Ministers had not misdirected themselves, relied on immaterial considerations, acted without evidence, or failed to give adequate reasons when deciding that there was no overprovision in the Newmarket Walk neighbourhood.
2. In assessing the appropriate distribution of pharmaceutical services, the decision-maker was entitled to consider the increase in demand across the whole health-board area and reasonably infer that part of that increase related to Merthyr Tydfil and the Newmarket Walk neighbourhood. The possible transfer of some demand to the Health Park did not make the wider evidence irrelevant.
3. The Welsh Ministers were also entitled to consider the practical effect on patients of relocation, including the loss of Saturday and extended weekday opening at Newmarket Walk. Their conclusion that the Dowlais application best preserved overall access and provision was rational and supported by the evidence.
4. The additional cost of admitting Dowlais to the pharmaceutical list had been drawn to the decision-makers’ attention and had been considered. It was unnecessary to decide whether that cost was legally a mandatory consideration. The decision was not irrational merely because the preferred arrangement involved additional expenditure.
5. Obiter, the court considered that a reasons challenge would have been assessed by reference to the principles in South Bucks v Porter (No. 2) [1994] 1 W.L.R. 1853. Brief reasons addressing the additional cost might have been desirable. The witness statement of the decision-maker would have elucidated, rather than fundamentally altered, the reasons. In any event, relief would have been refused because the outcome would highly likely have been substantially the same under section 31(3D) of the Senior Courts Act 1981.

First-instance judicial review. The claim was dismissed and permission to pursue the additional costs ground was refused.