Judicial Clarification on the Fixed Provisional Date under the 2009 NHS (Pharmaceutical Services) Regulations

Introduction

The case of Petition of Burns Pharmacy Ltd for Judicial Review ([2025] CSOH 33) before the Scottish Court of Session centers on a conflict between Burns Pharmacy Limited and pharmacist Sean Manson. Mr Manson, seeking to open a new pharmacy in his home village of Monkton, submitted an application to be included on the provisional pharmaceutical list administered by the Ayrshire and Arran Health Board. Burns Pharmacy, a competitor operating several nearby premises, challenged the Health Board’s decision to extend the time limit for submitting a required Form B. This challenge focused on the statutory deadlines prescribed in the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009, specifically the provisions under Regulation 8 which govern the “provisional date” by which the applicant must commence services.

The legal dispute arose from the Board’s decision on 9 October 2023 and the subsequent extension decision on 21 February 2024. Burns Pharmacy argued that these decisions unlawfully deviated from the applicant’s original commitment made in Form A(1) – where Mr Manson stated that he would commence services within 3 to 4 months of a successful outcome. The legal controversy, therefore, focuses on whether the Health Board had the statutory authority to alter the “provisional date” and to grant an extension that deviated from the original submission.

Summary of the Judgment

In a comprehensive opinion delivered by Lord Sandison, the court examined the statutory framework and the discretionary limits of the Health Board’s powers. The Court determined that:

• The Health Board’s decision to unilaterally extend the period for submitting the Form B by altering the “provisional date” was unlawful if it deviated from the mandatory time limits set out in Regulation 8(4).
• As the applicant’s Form A(1) had specified a commencement period of 3 to 4 months (with the attendant provisional date), any extension beyond this period required strict compliance with the procedural requirements of Regulation 8(5).
• Mr Manson’s subsequent application for an extension, made on 12 February 2024, was out of time if the initial period had not been lawfully adjusted. However, the Board’s later interpretation that the provisional date was, in fact, six months from the date of inclusion was found to be lawful.
• The petitioner’s overall argument that there was a necessary and fixed link between the date provided in Form A and the provisional date was rejected. The court held that at the time of admission to the provisional pharmaceutical list, the applicant is required to commit to a new “provisional date” and that this new date is determined by the regulatory scheme independent of the original statement.
• Consequently, the court sustained the Health Board’s decisions and refused the petition for judicial review.

Analysis

Precedents Cited

The Judgment makes reference to several precedential cases that have influenced its legal reasoning:

• Shahid v Scottish Ministers [2015] UKSC 58: This case established that where legislation spells out a clear consequence for failure to comply with a statutory requirement, no amount of purposive interpretation will allow a deviation from that consequence. This principle underpinned the court’s analysis regarding the strict adherence to the submission deadlines laid out in Regulation 8.
• Soneji [2005] UKHL 49: While Soneji’s case dealt with situations where the statutory framework was silent regarding consequences of non-compliance, the court in the present case reaffirmed that, when legislation expressly stipulates a time limit and corresponding penalty, such statutory deadlines must be enforced.
• Other cases such as London & Clydeside Estates v Aberdeen District Council and Turning Point Scotland v Perry were cited to illustrate that a decision based on a statutory framework cannot be reinterpreted by introducing an implied discretion that conflicts with clear legislative terms.

Legal Reasoning

At the heart of the legal analysis was the interpretation of Regulations 8(1), 8(4), and 8(5) in the 2009 Regulations. The court emphasized that:

• The statutory language distinguishes between the “intention” stated in Form A and the “commitment” made upon issuance of Form D when the applicant is admitted to the provisional list. The latter is binding and determines the provisional date.
• The Health Board was not empowered to unilaterally extend the applicant’s deadline beyond what Regulation 8(4) stipulated unless a timely application for an extension had been submitted. Since Mr Manson’s extension request fell outside the designated period in the petitioner’s view, the Board’s decision was subject to challenge.
• The court held that the Health Board’s incidental powers to correct minor administrative discrepancies did not extend to altering the substantive deadline set by Regulation 8(4). In this context, the Board could not imply into the Regulations a power that directly contravened their clear provisions.

Thus, the court’s reasoning rested on a textualist interpretation of the Regulations, rejecting any attempt to read into the statute a flexible or retroactive amendment power that might excuse non-compliance with prescribed time limits.

Impact on Future Cases and the Pharmaceutical Services Field

The Judgment has significant implications for the administration of pharmaceutical services in Scotland:

• Strict Adherence to Statutory Deadlines: Public bodies must adhere to the explicit deadlines contained in statutory regulations. Any deviation from these deadlines, even if administratively convenient, will be subject to judicial scrutiny.
• Limited Discretion for Administrative Amendments: While minor procedural modifications may be permitted, substantive changes—such as altering the provisional date that affects service commencement—are not to be undertaken without clear statutory authority.
• Reinforcement of Patient Interests: Although the regulations are aimed at ensuring prompt and efficient access to pharmaceutical services, this goal does not provide a carte blanche for public bodies to modify statutory timeframes in a way that could prejudice the competitive and procedural framework.
• Future Precedents: The decision reinforces a rigorous approach to statutory interpretation and may serve as a benchmark in future judicial reviews concerning regulatory applications and procedural deadlines.

Complex Concepts Simplified

Several legal concepts in the Judgment may appear complex; here is a simplified explanation:

• Form A vs. Form D: Form A(1) is the initial application where an applicant states their intentions regarding when they plan to commence services. Later, when the applicant is admitted to the provisional pharmaceutical list, the Board issues Form D. This form not only confirms admission but also sets a “provisional date” by which the applicant must begin services.
• Provisional Pharmaceutical List: This is a temporary list maintained by the Health Board. Applicants on this list commit to a specific start date for providing services (the provisional date). Failure to meet this deadline triggers automatic removal from the list.
• Regulation 8(4) and (5): Regulation 8(4) establishes a strict deadline for submitting Form B (which transitions the applicant from provisional to substantive status). Regulation 8(5) allows for an extension of this deadline—but only if applied for within a prescribed timetable and if the applicant can demonstrate unavoidable delays.

Conclusion

In summary, the Judgment in Petition of Burns Pharmacy Ltd for Judicial Review underscores the rigidity of statutory deadlines within the 2009 NHS (Pharmaceutical Services) Regulations. The court affirmed that the Health Board’s modifications to the provisional date – and the subsequent extension granted – were within the bounds of its administrative discretion provided they did not conflict with the express statutory framework. The decision reinforces the principle that clear and unambiguous statutory provisions must be adhered to, leaving little room for judicial leniency when administrative bodies attempt to deviate from prescribed time limits.

This case sets an important precedent for future challenges involving regulatory deadlines and emphasizes that administrative flexibility must always be exercised within the limits of legislative intent. Ultimately, while the underlying goal of ensuring access to pharmaceutical services remains paramount, public bodies must operate strictly in accordance with the legal parameters established by statute.