Reaffirming the “Fresh Decision” Requirement in Pharmacy Service Reconsiderations

Introduction

In Petition of Abbey Chemists LTD for Judicial Review (Court of Session) ([2025] CSOH 21), the Scottish Court of Session addressed the scope and nature of a Pharmacy Practices Committee’s (“PPC”) duty to “reconsider” an application following a successful appeal to the National Appeal Panel. Abbey Chemists Limited (“the Petitioner”) sought judicial review of the National Appeal Panel’s (“NAP”) refusal to uphold its second appeal. This matter centered on whether the PPC had complied with the requirement to revisit the merits of an application anew, as well as whether it properly evaluated the adequacy of existing pharmaceutical services in the relevant area.

The Judgment clarifies several critical points under the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009 and provides guidance on the standard of review for both the PPC and the NAP in considering pharmacy applications. It also addresses what qualifies as proper reconsideration when a decision is remitted after procedural or reasoning-related defects. This commentary discusses the background facts, the Court’s findings, the precedents cited, and the likely implications of the Court’s decision for future pharmacy listing applications.

Summary of the Judgment

The Court of Session refused Abbey Chemists Limited’s petition for judicial review. The petition stemmed from a decision by the NAP, which had previously remitted an application back to the PPC. The Petitioner argued that the PPC did not truly “reconsider” the application as the NAP had instructed, but merely “refreshed” its original reasoning. In rejecting this claim, the Court found that even though the PPC incorporated elements of its original decision, it had adequately reconsidered the merits afresh, in accordance with the guidance from both the NAP and relevant legal authority.

Additionally, the Petitioner challenged the PPC’s conclusion that pharmaceutical services in the relevant neighborhood were inadequate, claiming the PPC gave excessive weight to the Consultation Assessment Report (“CAR”) and that it had made errors in assessing the existing pharmacy provision. The Court determined that the PPC and NAP had exercised their specialist judgment appropriately and had not acted irrationally or without adequate reasons. Ultimately, the Court upheld the NAP’s decision and dismissed the petition.

Analysis

Precedents Cited

The Court referenced or relied upon several prior authorities and legal provisions, including:

• R (on the application of Moss) v Service Complaints Ombudsman of the Armed Forces (No. 3) [2024] EWHC 669 (Admin): This case was used by the Petitioner to support the proposition that when a prior decision is quashed, the decision-maker must produce a “fair and reasonable decision on the merits” anew. The Court acknowledged this proposition but found that the guidance was satisfied in the PPC’s rehearing.
• The National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009: Specifically, Regulation 5(10) dealing with whether the granting of an application is “necessary or desirable” to secure adequate provision of pharmaceutical services, and paragraph 5 of Schedule 3 explaining valid grounds of appeal to the NAP.
• Lloyds Pharmacy Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2004 SC 703: The Court referenced Lord Drummond Young’s analysis in Lloyds Pharmacy to clarify the interaction between the terms “necessary” and “desirable.” This case highlights that “necessary” implies meeting an existing shortfall, whereas “desirable” can encompass some forward-looking considerations.
• South Buckinghamshire DC v Porter (No 2) [2004] 1 WLR 1953: Cited regarding the adequacy of reasons required in decision-making. The core principle—that an informed reader should not be left in real and substantial doubt—resonated throughout the Court’s reasoning.
• United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831: This case was similarly used for its guidance on how a panel must state sufficient reasons to justify its determination.

These precedents informed the Court’s stance on how robustly the PPC must revisit the issues after an appeal, as well as the qualitatively high level of deference courts afford specialized decision-making bodies like the PPC.

Legal Reasoning

The Court’s reasoning turns on two main aspects:

1. The Meaning of “Reconsideration”:
   After the NAP remitted the matter back for “reconsideration,” the PPC received legal advice that it should address all relevant issues anew, particularly any flaws related to over-reliance on the CAR. The Court found that the PPC, though embracing some of its original findings, applied its mind afresh to whether the existing provision of pharmaceutical services was adequate and gave additional reasons. Notably, the Court pointed out that “reconsideration” does not necessarily require the PPC to reach a different outcome—it simply requires a new decision-making process on the merits, taking into account the guidance issued upon remittal.
2. Assessing Adequacy of Pharmaceutical Provision:
   In affirming the PPC’s fresh decision on adequacy, the Court highlighted that specialized tribunals like the PPC have broad discretion in determining whether a neighborhood’s needs are met. The PPC evaluated the Petitioners’ pharmacy provision, evidence of queues and capacity constraints, and the CAR’s findings (with appropriate caution). Though the CAR used a slightly different neighborhood boundary than the PPC, the Court agreed that the PPC took a balanced approach by comparing the CAR’s feedback with other available evidence. The Court reiterated that it would not interfere unless the decision was plainly wrong or so irrational that no reasonable decision-maker could have reached it.

Ultimately, the Court concluded that the NAP was correct to uphold the PPC’s determination. Because the Petitioner’s second appeal was based largely on challenging factual assessments—a task the NAP does not undertake lightly—the Court was satisfied that the NAP’s refusal to overturn the PPC’s ruling was justified.

Impact

The Court’s decision carries important implications for pharmacy listing applications and the broader field of administrative law:

• “Fresh Decision” Clarified: This ruling underscores that a board or committee directed to reconsider must indeed revisit the substance of the case. However, referencing prior reasoning does not invalidate a new decision so long as that reasoning is critically assessed and supplemented in light of prior defects identified by the appellate body.
• Deference to Specialist Tribunals: The Judgment reiterates that courts will show considerable deference to decisions of specialized panels (like the PPC), especially on factual determinations relating to the adequacy of services. Rigid attempts to re-litigate underlying facts in judicial review proceedings generally fail unless the decision is “plainly wrong.”
• Guidance on Handling Consultation Assessments: The Court’s emphasis on balanced consideration of the CAR—particularly when the CAR’s neighborhood boundaries differ from those ultimately adopted by the PPC—provides further direction on how consultation data should be weighed alongside other evidence.
• Procedural Accuracy and Grounds of Appeal: The Judgment highlights that when challenging a PPC’s determination, the specific grounds of appeal listed in the Regulations must be carefully pled. If the challenge does not invoke the proper ground—such as alleging a procedural defect under the correct provision—an appellate body like the NAP will likely reject it.

Complex Concepts Simplified

Several technical points emerge prominently from this decision:

• Necessity vs. Desirability: Under the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009, a pharmacy application may be granted “only if it is necessary or desirable” to ensure adequate coverage. “Necessary” addresses immediate shortfalls, while “desirable” can account for future or broader needs. This is distinct from examining the applicants’ premises for any special qualities beyond competence in meeting anticipated demand.
• Standard of “Reconsideration”: After a successful appeal, a PPC is not required to disregard its entire previous deliberation or arrive at a new conclusion; it must simply apply its reasoning anew, giving full and fresh consideration to criticisms identified by the appellate body (in this case, the NAP), and ensure it has rectified any major flaws or omissions in its prior approach.
• The Role of the CAR: The Consultation Assessment Report is one piece of evidence concerning public opinion and usage patterns. While important, the PPC must avoid placing undue reliance on it to the exclusion of other evidence, such as observable pharmacy capacity and practical service delivery realities. The NAP can remit a decision for reconsideration if it appears that the PPC has overly depended on the CAR without balancing it against other sources.
• Deference and Irrationality: The Court will not overturn factual determinations made by a specialized panel unless those determinations palpably exceed the bounds of reasonable decision-making. Minor disagreements or plausible differences of opinion seldom suffice to meet the rigorous standard of irrationality.

Conclusion

This Judgment reinforces the principle that when a tribunal’s decision is set aside or remitted for reconsideration, the tribunal must genuinely re-engage with the issues. Though referencing original conclusions is permissible, the tribunal must re-examine the factual grounds and rectify any identified errors. In the context of pharmacy service applications, the decision highlights the importance of balanced reliance on consultation data, cautious assessment of other pharmacies’ capacities, and compliance with the procedural framework set by the 2009 Regulations.

The Court’s refusal to grant the Petitioner’s judicial review underscores a broader deference to specialized decision-makers: as long as the PPC and NAP substantiate their reasoning and comply with their regulatory obligations, courts will be slow to intervene. This case thus serves as an important guidepost for future applicants, existing pharmacy contractors, and health boards alike, clarifying that “reconsideration” is not synonymous with “reversal,” but demands a fresh, substantive look at the crux of the dispute.