The court considered applications to join the lists of pharmacies in an area, and the adequacy of current provision. Laws LJ said: ‘What is ‘adequate’ is a question of degree. There is, as it has been described, a spectrum or ‘continuum’ of adequacy.
That is, I think, ordinarily a feature of the term ‘adequate’ as a matter of language. But it is in any case a necessary feature of the term as it is used in Regulation 4(4) since if it were otherwise – if ‘adequate’ were to denote a single sharp edge, such that any given set of facts would fall plainly upon one or other side of it – then it would be impossible to arrive at any construction of the earlier phrase, ‘necessary or desirable’, other than one in which the word ‘desirable’ were otiose. If the provision were inadequate, it would simply be necessary to make it up by granting the application. If it were adequate, the application would have to be refused.
It follows that, while on the surface the first question for the decision-maker is simply whether existing provision is adequate, the real question is where on the sliding scale or spectrum of adequacy does this case on its facts belong.
To this, the logically available answers are:
(a) Wholly adequate. There is no magic in the word ‘wholly’: it simply refers to a state of affairs in which there is no question but that the existing provision suffices.
(b) Wholly inadequate. Again there is no magic in the adverb. This looks at a state of affairs where further provision must necessarily be made.
(c) Marginal, or somewhere between (a) and (b). There the decision-maker may conclude that it is desirable to grant the application in order to secure adequate provision. But
(d) There may be some slippage between what is marginal and the extremes, wholly adequate or wholly inadequate. To that extent there may be slippage also between what is necessary and desirable. The judgment to be made is emphatically pragmatic’.
Judges:
Laws LJ
Citations:
[2001] EWCA Civ 128
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Assura Pharmacy Ltd, Regina (on the Application of) v National Health Service Litigation Authority (Family Health Services Appeal Unit) CA 5-Dec-2008
The parties challenged the refusal and admission to the respective lists of pharmacies allowed to operate in the Todmorden and Freckleton districts. The judge had said that the local PCTs had departed from the appropriate ministerial guidance which . .
Lists of cited by and citing cases may be incomplete.
Health Professions
Updated: 27 June 2022; Ref: scu.217943