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Nhsla.nhs.uk

REF: SHA/17137
APPEAL AGAINST HEART OF BIRMINGHAM PCT
DECISION
FIRSTCARE
APPLICATION
INCLUSION
PHARMACEUTICAL LIST AT ATTWOOD GREEN
HEALTH CENTRE, 30 BATH ROW, BIRMINGHAM, B15
1LZ

The Application
By application dated 29 November 2012, Firstcare (UK) Ltd (“the Applicant”) applied to the Heart of Birmingham Teaching Primary Care Trust (“the PCT”) for inclusion in the pharmaceutical list at Attwood Green Health Centre, 30 Bath Row, Birmingham, B15 1LZ. In support of the application it was stated: The PCT has previously approved the opening of a new pharmacy at Attwood Health Centre under 2005 regulations. The PCT granted the application for a 100hr pharmacy to be situated in the proposed pharmacy lease space to be constructed by Prime (UK) Developments limited. This PCT approved and led development is now complete with a GP practice operating from the health centre and the proposed 2nd GP practice to begin operating shortly. The PCT approval for these pharmacy services is still relevant. The Applicant has completed a lease for the pharmacy premises and is at advanced stages in planning the pharmacy fit out. The Applicant can therefore commit to opening the pharmacy within 6 months of having this application approved. The previous application clearly allowed for improved and better access to pharmacy and pharmaceutical services due to the extended pharmacy operational hours, the provision of pharmacy services that are not currently available locally and a pharmacy service, located where there is clear need for service delivery to patients, GP's and other healthcare professionals and the PCT. These facts remain true irrespective of the change in regulations. Given the above and the previous determination by the PCT, this application under regulation 18 should be granted. The Applicant has secured the exclusive right to the pharmacy lease and is therefore the only pharmacy entity able to occupy the pharmacy space and offer pharmaceutical services to the substantial population registered with the GP surgeries that are / will operate from Attwood Health Centre. The PCT having previously approved a pharmacy are fully aware of the range of services that will be available to the local population. The pharmacy will be fully operational, delivering all pharmacy services for the duration of the 80 operational hours (as per page 2 of the application form). The Applicant will provide the full range of essential, advanced and enhanced pharmacy services from premises that are professionally fitted and fit for purpose. This will allow substantial improvement and better access both in terms of pharmacy opening hours and the range of services that the population are able to access. As the PCT is aware pharmacy services are currently available from a temporary structure, operating for significantly less hours and due to the nature of the premises is unable to provide a full and complete range of services. The Attwood Health Centre development was not identified in the PNA, although the need for pharmacy services at the application site has been identified during the planning stages for the health centre development and as a result of granting the previous application. The pharmacy will deliver all essential, advanced and all currently commissioned and future commissioned enhanced services. Additionally a range of private services will be provided including blood pressure testing, diabetes screening, weight management and other private services to support the PCT achieve its health outcomes as published in the PNA. The Decision
The PCT considered and after taking a preliminary view decided to refuse the application. The decision letter dated 28 February 2013 states: The PCT has considered the above application and the PCT are writing to confirm that it has been refused for the following reasons: After careful consideration the panel’s preliminary view under regulation 18(2)(b) of the NHS Pharmaceutical Regulations 2012 was that no significant benefits of a type that was not foreseen when the PNA was produced would be delivered, therefore the panel decided to refuse the application under Regulation 22 of the NHS Pharmaceutical Regulations 2012. The Appeal
In a letter to the Family Health Services Appeal Unit of the NHS Litigation Authority (“the Appeal Unit”), dated 5 March 2013, Rushport Advisory LLP on behalf of the Applicant appealed against the PCT’s decision. The grounds of appeal are: The PCT has failed to circulate a copy of written representations received following the PCT 45 day consultation period. A PCT decision has therefore been made without giving the applicant an opportunity to fully input into the process. The PCT has provided no rationale as to why they have rejected the application in their decision letter dated 28th February 2013. The New Attwood Medical Centre was not identified in the PNA but the need for pharmacy services was identified by the PCT during the planning stages and PCT sign off stages for the new medical centre development as pharmacy lease space has been included. The PCT have previously granted a new pharmacy license (which has now lapsed) therefore they identified a need and granted a license that provided better and improved access both in terms of extended hours and availability of services that are currently not available. This application will provide the very same benefits as the application previously approved by the PCT. A range of services has been identified that fits with the PCTs health improvement strategies and will be offered by the applicant. These services are not available from existing pharmacy contractors. The PCT has failed to consider reasonable choice as the existing pharmacy is not providing enhanced pharmacy services. The PCT has failed to consider access to services that meet specific needs as the existing pharmacy is not providing pharmacy services. The PCT has failed to consider the innovative approach to service availability that the applicant is able to provide. The granting of the application would confer significant benefits on persons in its area which were not foreseen when the PNA was published and for which the PCT has failed to recognise in its deliberations. Rushport Advisory LLP believe that this application should be granted and welcomes the opportunity to fully appeal the PCT decision. Summary of Representations
This is a summary of representations received on the appeal. A summary of those representations made to the PCT are only included in so far as they are relevant and add to those received on the appeal. RUSHPORT ADVISORY LLP ON BEHALF OF THE APPLICANT Following submission of grounds for appeal on behalf of the Applicant on 5th March 2013 please find enclosed further detail. The Applicant has appealed the PCT grant of a no significant change relocation (SHA/17151). This relocation is to the same location as The Applicant’s application for inclusion in the pharmaceutical list and therefore Rushport Advisory LLP believe these applications should be considered together. PCT decision
The PCT during their decision making process has failed to circulate a copy of written representations received following the PCT consultation period. The Applicant has therefore not been able to provide the PCT with the supporting evidence it had intended. The PCT decision is therefore flawed. Map and Pharmacy details provided
The map and details of Birmingham and Solihull cluster pharmacies as provided with the letter from NHSLA dated 22nd April 2013 does not include the pharmacy Disscband Ltd 10 Bath Row, Lee Bank, Birmingham, B15 1LZ. Details of core hours and supplementary hours are also missing. Demographic summary
The application site is in the Ladywood ward which as an inner city ward is characterised by significant deprivation. Population with no access to a car or van 54.5% compared to 35.8% across Birmingham. Residents born outside the UK 28.3% compared to 18% across Birmingham. Asian 23% Black/ African/ Caribbean/ Black British 16.5% Residents residing in rented accommodation 76% compared to 42.1% across Birmingham.(Census 2011) The PNA further describes the characteristics: 4.1.6.1 Unlike other parts of the city, most people who live in the 10 PCT wards (total resident population 270,000) are not white. The population is young and expected to increase by a further 22,000 in the next 5 years. 4.1.6.2 32% of our population (87,900) are children and young people (under 4.1.6.3 Around two thirds of our residents live in neighbourhoods classified as amongst the most deprived (worst 20%) in the country. There has been little relative improvement in all indices of deprivation, except crime, since 2004. 4.1.6.4 80% of households are Asian families living in semi-detached or privately rented terraced houses or young ethnically diverse households living in social housing. 4.1.6.5 Around 30,000 vulnerable persons i.e. those in receipt of means 4.1.6.6 Rates of male unemployment are high (more than 15% in 6 wards) and dependency on Job Seekers Allowance (prior to current economic recession) has remained unchanged over the last 10 years. 4.1.6.7 Life expectancy remains short compared with the rest of England and 4.1.6.8 Infant deaths, premature deaths from heart disease, diabetes, stroke and cancer are the main cause of life years lost (48%) and low life expectancy. 4.1.6.9 The latest diabetes prevalence modelling from the Association of Public Health Observatories (APHO) shows that HoB has the highest diabetes prevalence of any PCT in the country adjusted for age, gender, ethnicity and deprivation). The rate is 10.9% cf 7.4% for England (APHO June 2010). There are estimated to be over 22,000 diabetics aged 16+ in HoB (diagnosed and undiagnosed) and this is expected to rise by 10,000 by 2030. Local health need
The PNA highlights specific health and service needs for this population. Appendix 1 taken from Page 10 of the PNA describes health goal and outcomes via commissioning focus areas which include: Smoking CVD/ Stroke Alcohol use End of life care Urgent and emergency care Obesity 4.1.8.1 The PCT’s strategic plan (2010-2015) “Better care for everyone” sets out the PCT’s mission “Eliminating health injustice for richer, longer lives” and the vision “To close the health gap in a generation through people, partnerships and transformation of health care”. 4.1.8.2 Improving the health of the local population. 4.1.8.3 Improving health outcomes for adults. 4.1.8.4 Improving the experience of healthcare. 4.1.8.5 Improving the sustainability of the healthcare system. Advanced services
The PNA highlights the importance of advanced services throughout the PNA as a service the PCO support to support delivery of the strategic goals. The PNA highlights slow and low uptake of the MUR service. 4.1.10 The current contractor Disscband Ltd have completed no MURs between August 2012 and January 2013 (most recent data available). The pharmacy is situated in a portacabin unit which the Applicant assume has failed to meet the PCO accreditation requirements. 4.1.11 The valuable MUR service is currently unavailable to the substantial population. GP surgeries serving the local population have a patient list of c 12,300; therefore this substantial population has no access to advanced services. 4.1.12 (PNA) Advanced services - can be provided by contractors once accreditation requirements have been met. 4.1.13 The uptake of MURs when compared to the national average had been slower than expected in pharmacies in the Heart of Birmingham. To encourage an increase in the uptake of MURs, the PCT in partnership with GlaxoSmithKline and the Local Pharmaceutical Committee, carried out a MUR project involving focused education and support over several months. The project was designed to encourage arbitrary and could not realistically be applied to every pharmacy. MURs can be used as a tool to contribute to encouraging patients not to over-order, or stock-pile their medicines thus reducing prescribing costs and ensuring the most appropriate formulation is prescribed and that patients are taking their medication correctly. MURs should be targeted towards those who need them most and the PCT & LPC should work together more to develop MUR Services which are aligned to local priorities defined by local PCT(s) and are subsequently written into care pathways. Commissioned services
4.1.14 The PCO commission a range of services designed to support / improve the health of the local population and to support the PCO strategic plan and goals. Smoking cessation Needle exchange Supervised consumption Alcohol misuse EHC Chlamydia screening Early pregnancy testing Minor ailment service Advice to nursing homes 4.1.15 The current pharmacy Disscband Ltd is not providing any of these 4.1.16 The substantial local population have no access to services which the PNA (Appendix 1) describe as goals / health outcomes / commissioning focus areas. 4.1.17 Appendix 2 sourced via FOI shows services provided by pharmacy across the PCO. This shows Disscband Ltd t/a Shire Pharmacy (highlighted) as providing essential services only. 4.1.18 Using the map and key provided, the pharmacies plotted closest to the application site are again only providing essential services: 4.1.19 No 6 / 7 and 8. The local population having poor access to a vehicle (54.5% no access to a vehicle - Census 2011) are forced to access pharmacies in the city centre. Access to the city centre is not an easy journey to make and is not convenient. Issues include: 4.1.19.2 Major dual carriageway roads to negotiate. 4.1.19.3 Shopping destination rather than a destination to access health / 4.1.19.4 Car parking expensive and severely limited for those with access to a vehicle Should the journey be made - access to commissioned services is not satisfied: 4.1.20 Using PCT provided pharmacy map and key: 4.1.20.1Pharmacy No 9 EHC and MAS only available 4.1.20.2Pharmacy No 10 EHC and MAS only available 4.1.20.3Pharmacy No 11 essential services only 4.1.21 In relation to Regulation 18 (2)(b)(i) ‘there being reasonable choice with regards to obtaining pharmaceutical services in the area of the primary care trust’ Access to and reasonable choice is currently lacking, clear evidence / statistics exist showing advanced and enhanced pharmacy services are needed. These services are not available where the need is identified. 4.1.22 PCO service strategy and need is clearly documented: 4.1.22.1This enhanced service is delivered by the Pharmacists and pharmacy staff to patients providing one to one support and advice to people who want to give up smoking. 4.1.22.2Currently 62 pharmacies have signed up to this service and Figure 4 (page 22) shows it is an integral part of the PCT strategy to reduce smoking within its population, resulting in 57% of the 4 week quit rate for the PCT in 2009/10 (PNA) 4.1.22.3Adult smoking 21.3 being worse than England average (EA) 4.1.22.4Smoking related deaths 231- significantly worse EA 4.1.22.5Early deaths heart disease and stroke- significantly worse than EA 4.1.22.6Early deaths from Cancer- significantly worse than EA 4.1.22.7‘Early death rates from cancer and from heart disease and stroke have fallen but remain worse than the England average. Public Health England 2012 (Appendix 3) 4.1.23 In particular, needle exchanges have a vital role to play in reducing the risks associated with injecting drug use. The main aims are: 4.1.23.1To reduce the spread of blood borne pathogens (HIV, Hepatitis B & 4.1.23.2To provide information and advice to reduce the harms associated 4.1.23.3To refer drug users into treatment or to signpost to other agencies for 4.1.24 Drug misuse 14.3 per 1,000 (opiate and / or crack cocaine users) - significantly worse than EA. (Public Health England 2012)(PNA) 4.1.25 (Public Health England 2012). Substitution therapy using methadone or buprenorphine is an evidence-based, highly effective intervention in the treatment of patients dependent on opiates. During the first few weeks of treatment, supervised consumption of the medication is important to ensure that stability is achieved safely. 4.1.26 This enhanced service requires the pharmacist to supervise the consumption of methadone or buprenorphine by the client at the point of dispensing in the pharmacy. The service not only reduces the risk of drug-related death during the induction and titration stages of treatment, but also prevents diversion of prescribed medication. Importantly, this service ensures frequent (usually daily) contact with [sic] (PNA) 4.1.27 Deaths amongst men from alcohol related harms in this PCT are amongst the highest in the country (rank 149/152). The Royal Pharmaceutical Society of Great Britain's Policy Development assessed the feasibility of community pharmacy-based services for alcohol misuse and came to the conclusion that interventions are appropriate and clinically useful tools for use in the community. The Birmingham Drug and [sic] (PNA) 4.1.28 Rates of Chlamydia infection are highest in Ladywood ward; there is no service available to tackle this PCO published statistic. 4.1.29 In 2007 there were 127 births to teenage mothers; reducing teenage pregnancy and births is a key health outcome for the PCT for reducing infant mortality. 4.1.30 Chlamydia is the commonest sexually transmitted infection in the UK and its prevalence is increasing, especially in young people under the age of 25. The infection can be symptomless, but if left untreated, can lead to serious health problems including infertility in women. Rates of infection are highest in Ladywood, Aston and Soho wards. Community pharmacies are an important element in the provision of sexual health services. (PNA). 4.1.31.1Support the HoBtPCT strategy in increasing access to emergency 4.1.31.2Provide appropriately trained personnel the opportunity to supply treatment to clients with a specific need. 4.1.31.3Provide locally based access to emergency contraception and advice, free at the point of access. (PNA) 4.1.32 Teenage pregnancy rate (<18yr) 47.4 per 1,000 females aged 15-17. Significantly worse than EA. (Public Health England 2012) 4.1.33 Percentage of pregnancies (<18yrs) leading to abortion 2010 52.9%, increasing from 50.3% in 2009. (ONS / DfE 2012) 4.1.34.1Provide opportunistic screening service to all persons under 25 years of age and partners of positive clients (partner screening is not age specific). Since April 2010, all pharmacies in HoBtPCT are able to provide Chlamydia screening. Initial uptake has been very slow, only three tests were done in the first four months. Further work needs to be done around marketing this enhanced service. There needs to be a commitment to support this from all pharmacies. (PNA). 4.1.35 This service was set up to tackle the high infant mortality rate in Birmingham. This service offers a free pregnancy test to women who may suspect they are pregnant. After the pregnancy test, the pharmacist will pass the patient details on to a call centre. If the test is positive the call centre will subsequently arrange for an appointment with midwifery services. The use of the call centre is currently under review and in the future its likely that the community pharmacist will contact the patients' GP. (PNA). 4.1.36.1To provide early pregnancy testing to reduce infant mortality by facilitating early antenatal appointment booking. The service assists pregnant women so that they are referred to maternity services in the first trimester of pregnancy (fast track pharmacies). 4.1.36.2Supply 'Health Start' vitamins (contains folic acid) to women in the first trimester of pregnancy thus reducing the incidence of neural tube defects. 4.1.36.3HoBtPCT has an anti-rickets strategy which is essentially concerned with the prevention of rickets in young children via the vehicle of universal and free supplements to targeted groups, specifically children under 5, pregnant women and women with a child under one year old. 4.1.37 In 2009-10, all early pregnancy testing pharmacies were contracted to issue 'Healthy Start' vitamin tablets for women to support this strategy. During this period, 2,169 issues were recorded; an average of 241 per month. For 2010-11, the contract has been extended to include issuing of children's drops as well as women's tablets. To date, 34 pharmacists have signed up. This initiative has been found to be a useful addition to the portfolio of existing issuing sites and has helped to ensure an even geographical spread across the PCT. 4.1.38 The Minor Ailments Scheme (MAS) recognises that patients do not always need to visit their doctor, and incorporates the professional help of local pharmacists who are trained in the advice and treatment of minor ailments. The supply of medicines is free to patients who are exempt from prescription charges. The patient is referred into the service by the GP, pharmacist or by self referral. Those most likely to benefit from a minor ailments service are patients who do not pay prescription charges (85% of Heart of Birmingham tPCT patients). Therefore areas with a high level of deprivation may particularly benefit from a minor ailment scheme. (PNA) 4.1.39 is associated with poor health. The only wards in Heart of Birmingham tPCT that do not significantly use this scheme to any great extent are Oscott, Ladywood and Perry [sic] (PNA) 4.1.40 Ladywood ward is identified as having poor uptake of the MAS, this will put GP services / WIC / urgent care and A&E services under additional stress. The current poor uptake is counterproductive in light of the PCT strategy to reduce admission rates to primary and secondary care services. Appendix 1. 4.1.41 The applicant will be introducing the following services on a private basis. These are not currently commissioned by the PCO although there is well documented need for these services. 4.1.42 The prevalence of diabetes is greater where there is a significant ethnic population. The PNA describes the PCT as having the highest diabetes prevalence of any PCT in the country. This is a significant issue. (PNA) 4.1.42.1The latest diabetes prevalence modelling from the Association of Public Health Observatories (APHO) shows that HoB has the highest diabetes prevalence of any PCT in the country adjusted for .age, gender, ethnicity and deprivation). The rate is 10.9% cf 7.4% for England (APHO June 2010). There are estimated to be over 22,000 diabetics aged 16+ in HoB (diagnosed and undiagnosed), and this is expected to rise by 10,000 by 2030. (PNA) 4.1.43 Diabetes contributes to early deaths associated with heart disease and stroke, the prevalence of diabetes 6.8% is significantly worse than EA. (Public Health England 2012) 4.1.44 A service will be introduced whereby the local population with greatest risk will be targeted and offered a diabetes screening service. 4.1.45 A complete cardiovascular screening service to include BP testing, cholesterol tests, diabetes screening, weight, BMI, lifestyle questionnaire will be introduced. This will support the local population to make better choices to improve their health and support the PCO to reduce the number of early deaths due to CVD and stroke. 4.1.46 This service will be available as a complete service or as individual tests. 4.1.47 26.2% of adults are obese- significantly worse than EA 4.1.48 24.6% of adults eat healthily- significantly worse than EA 4.1.49 10.1% of adults are physically active- worse than EA 4.1.50 23.4% of children are obese- significantly worse than EA (Public Health 4.1.51 A weight management support service will be introduced to reduce the poor statistics that are commonly seen in the local population. 4.1.52 A range of services will be available via innovative service solutions on a Erectile dysfunction (Viagra, Cialis, Levitra) Anti- malarials (Malarone, Doxycycline, Lariam) Influenza and Hep B vaccine Stop smoking (Champix) Hair loss (Propecia) Emergency contraception (Levonelle/ ellaOne) Travellers diarrhoea (Xifaxanta) 4.1.53 Access to private GP services will be available via an online solution which can be accessed in the pharmacy or at home and incorporates face to face consultations via Skype. 4.1.54 The pharmacy will offer a full pharmacy service from 7am to 8pm Monday to Friday, 9am to 5pm Saturday and will be open on Sunday from 10am to 5pm. A total of 80 hours per week. 4.1.55 The proposed hours, proposed as core hours offers significantly better access and improvements to both pharmacy availability and availability of a wide range of pharmacy services. 4.1.56 The current pharmacy contractor hours offer less access physically and no access to advanced or enhanced services as they are not commissioned or delivering these. Shire Pharmacy, Portacabin, Colston Mon, Tue, Thur and Fri 9am to Identifie
People sharing Available
protected locally
characteristic
Reduced admission to other health services Early deaths – heart disease and stroke Early deaths – heart disease and Cardiovascular 4.1.57 The new Attwood Medical Centre was not identified in the PNA. The need for pharmacy and pharmacy services was identified by the PCT during the planning stages and PCT sign off stages for the new medical centre development as pharmacy lease space has been included. 4.1.58 The PCT has previously granted a new pharmacy license (100hrs) which has now lapsed, therefore a need was identified (NOT in considering the PNA) and a license granted that provided better and improved access both in terms of extended hours and availability of services that are currently not available. This application will provide the very same benefits as the application previously approved by the PCT. 4.1.59 The PCT were incorrect in refusing the application under Regulation 22. The PCT preliminary view that under Regulation 18(2)(b) ‘that no significant benefits of a type that were not foreseen when the PNA was produced would be delivered’ is also incorrect. 4.1.60 The PNA contains clear strategic health needs and goals (as per Appendix 1 and 3) and a range of services to provide health improvement. What the PNA fails to consider / recognise is that services required at the application site are not being delivered as pharmacies are not accredited to do so resulting in a gap in service. 4.1.61 Whereas access to essential services was considered in the PNA, access to advanced and enhanced services was not considered in the PNA in relation to the specifics / needs of the application site. 4.1.62 Clear evidence has been provided in terms of health issues and service solutions that will compliment and support PCT strategic goals as published in the PNA. These health improvements will be delivered via currently commissioned services and / or via innovative service routes by the Applicant should the application be granted. 4.1.63 This pharmacy; should it be granted; will confer significant improvements and better access to pharmacy services in a location of identified need. 4.1.64 There will be no detriment to either proper planning of pharmaceutical services or to arrangements in place for the provision of pharmaceutical services. 4.1.65 The granting of this application will ensure reasonable choice is secured with regards to the ability to obtain advanced and enhanced pharmaceutical services. Persons with a protected characteristic will be able to access specific services that meet their needs in a location that is accessible. Innovative approaches have been identified with regards to delivery of pharmacy services. 4.1.66 Granting this application will confer significant benefits on persons in its area which were not foreseen when the PNA was published. 4.1.67 Rushport Advisory LLP urge the appeal unit to overturn the PCT decision and Consideration
The Pharmacy Appeals Committee appointed by the Family Health Services Appeal Unit of the NHS Litigation Authority, (“the Committee”) had before it the papers considered by the PCT, together with a plan of the area showing existing pharmacies and doctors’ surgeries and the site of the proposed pharmacy. The Committee noted the comments made by the applicant at 4.1.4 above and took this into account when considering the application. It also had before it the responses to the Authority’s own statutory consultations. On the basis of this information, the Committee considered it was not necessary to hold an Oral Hearing. The Committee noted that this was an application for “unforeseen benefits” and fel to be considered under the provisions of Regulation 18 of the National Health Service (Pharmaceutical Services) Regulation 2012 ("the 2012 Regulations") which states: If a Primary Care Trust receives a routine application and is required to determine whether the Primary Care Trust is satisfied that granting it, or granting it in respect of some only of the services specified in it, would secure improvements, or better access— to pharmaceutical services, or pharmaceutical services of a specified type, in its area; but the improvements or better access that would be secured were or was not included in its pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1, in determining whether it is satisfied as mentioned in section 129(2B) of the 2006 Act (regulations as to pharmaceutical services), the Primary Care Trust must have regard to the matters set out in paragraph (2). whether it is satisfied that granting the application would cause significant detriment to— proper planning in respect of the provision of pharmaceutical services in its area, or the arrangements it has in place for the provision of pharmaceutical services in its area; whether, notwithstanding that the improvements or better access were not included in its pharmaceutical needs assessment, it is satisfied that, having regard to the desirability of— there being a reasonable choice with regard to obtaining pharmaceutical services in the area of the Primary Care Trust, people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that, in the area of the Primary Care Trust, are difficult for them to access, or there being innovative approaches taken with regard to the delivery of pharmaceutical services, granting the application would confer significant benefits on persons in its area which were not foreseen when it published its pharmaceutical needs assessment; whether it is satisfied that it would be desirable to consider, at the same time as the appel ant’s application, applications from other persons offering to secure the improvements or better access that the appellant is offering to secure; whether it is satisfied that another application offering to secure the improvements or better access has been submitted to it, and it would be desirable to consider, at the same time as the appel ant’s application, that other application; whether it is satisfied that an appeal relating to another application offering to secure the improvements or better access is pending, and it would be desirable to await the outcome of that appeal before considering the appellant’s application; whether the application needs to be deferred or refused by virtue of any provision of Part 5 to 7. The Primary Care Trust need only consider whether it is satisfied in accordance with paragraphs (2)(c) to (e) if it has reached at least a preliminary view (although this may change) that it is satisfied in accordance with paragraph (2)(b)." Where the parties agree on a relevant fact, the Authority has proceeded on the basis of that fact having been proven for the purposes of the appeal. Where a party has provided evidence of a relevant fact which has not been disputed, the Authority has proceeded on the basis of that fact also having been proven. Where any issue of fact is in dispute, and that issue of fact is material to the Authority's decision, the Authority has set out its finding on the point and given its reasons for that finding. The Authority has not treated submissions as evidence but, where submissions have been made in relation to a disputed issue of fact, the Authority has taken any submissions into account when weighing up its finding. The Committee considered the Pharmaceutical Needs Assessment ("the PNA"), conscious that the document provides an analysis of the situation as it was assessed at the date of publication. The Committee bears in mind that, under Regulation 6(2) of the 2012 Regulations, the body responsible for the PNA must make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appears to be a disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under Regulation 6(3). Such a statement then forms part of the PNA. In this case the Committee noted the Applicant had provided a table setting out the various services he intends to provide which he indicated have been identified as needed within the PNA. The Committee was mindful that the PNA concludes that there is no requirement for any new pharmacies to be provided. With this in mind the Committee went on to consider all aspects of the application. The Committee noted the Applicant’s request for this application to be considered alongside another application for the same address SHA/17151. The Committee was of the view that it would be misguided to do so as the latter application is for a 'no significant change' relocation under Regulation 24 and as such is subject to a different test under the provisions of the 2012 Regulations. The Committee concluded that both applications should be considered separately. The Committee noted that the Applicant seeks to provide pharmaceutical services to the patients of Attwood Green Health Centre. The Committee also noted that the Applicant provides demographics for Ladywood Ward. The Committee noted that the PCT had taken the preliminary view that the instant application did not meet the criteria in accordance with Regulation 18 and therefore did not notify the application to statutory interested parties. The Committee noted that the PCT refused the application under Regulation 22 which states: “If a Primary Care Trust receives a routine application to which regulation 19(6) does not apply, the Primary Care Trust must refuse it unless granting it, or granting it in respect of some only of the services specified in it, would – (a) meet a current or future need for pharmaceutical services, or pharmaceutical services of a specified type, in its area that has been included in its pharmaceutical needs assessment in accordance with paragraph 2 of schedule 1; or (b) secure (including in the future) improvements, or better access, to pharmaceutical services of a specified type, in its area that have or has been included in its pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1.” In considering whether it was satisfied in accordance with Regulation 18(1), the Committee had regard to those matters in Regulation 18(2) as set out below. Regulation 18(2)(a)(i)
whether it is satisfied that granting the application would cause significant detriment to— proper planning in respect of the provision of pharmaceutical services in its area …" The Committee noted that the PCT had not addressed the provisions of 18(2)(a)(i). The Committee noted the Applicant says that there will be no detriment to planning and NHS England (as successor to the PCT) has not contested this. The Committee was therefore not satisfied that significant detriment to the proper planning of pharmaceutical services would result from a grant of the application. Regulation 18(2)(a)(ii)
whether it is satisfied that granting the application would cause significant detriment to— … the arrangements it has in place for the provision of pharmaceutical services in its area" The Committee noted that the PCT had not addressed the provisions of 18(2)(a)(ii).The Committee noted the Applicant’s view that there would be no significant detriment to the provision of pharmaceutical services in the area and that this had not been contested by NHS England. The Committee was therefore not satisfied that significant detriment to the arrangements currently in place for the provision of pharmaceutical services would result from a grant of the application. In the absence of any significant detriment as described in Regulation 18(2)(a), the Committee was not obliged to refuse the application and went on to consider Regulation 18(2)(b). Regulation 18(2)(b)
whether, notwithstanding that the improvements or better access were not included in its pharmaceutical needs assessment, it is satisfied that, having regard to the desirability of— there being a reasonable choice with regard to obtaining pharmaceutical services in the area of the Primary Care Trust, people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that, in the area of the Primary Care Trust, are difficult for them to access, or there being innovative approaches taken with regard to the delivery of pharmaceutical services, granting the application would confer significant benefits on persons in its area which were not foreseen when it published its pharmaceutical needs assessment" Regulation 18(2)(b) generally
The Committee was mindful of the Applicant’s reference to the PCT’s granting of a 100 hour pharmacy - under the National Health Service (Pharmaceutical Services) Regulations 2005 ("the 2005 Regulations") - which had since lapsed. The Applicant claimed that this demonstrates that the PCT were aware of the need for a pharmacy at the proposed site and that as this was not included in the PNA this is proof of an unforeseen benefit. The Committee was of the view that the Applicant had misdirected itself. Under the 2005 Regulations, an application for a '100 hour pharmacy' was exempt from the “necessary and expedient test” set out in Regulation 12 of those Regulations. As such, any grant of a “100 hour application” does not indicate that the PCT identified a need, merely that the application met the criteria as set out in Regulation 13 of the 2005 Regulations. The Committee noted the geographical spread of the existing pharmacy providers and GP surgeries as provided in the PCT’s map. The Committee was mindful of the pharmacy not shown on the map as pointed out by the Applicant (uncontested by NHS England) which is a portacabin situated at the Colston Health Centre, 10 Bath Row, B15 1LZ 9J on the PCT map) which would be the closest existing pharmacy to the proposed application site at 30 Bath Row, B15 1LZ. The Committee has verified the address of the nearest pharmacy on page 55 of the PNA The Committee noted that the Applicant describes the area as deprived with 54% of the population not having access to private transport. This has not been disputed by NHS England. The Committee also noted the Applicant says that access to advanced and enhanced services in the nearest pharmacy is unavailable and that access to the nearest pharmacy is not easy so people would have to head towards the town for pharmaceutical services. The applicant had not supported the application with the provision of any information as to the distance to any of the pharmacies in the area or the frequency of public transport. The Committee could see which services are currently available and noted the PNA listing of needle exchange supervised methadone and early pregnancy testing services provided by pharmacies in the vicinity of the proposed site, albeit not by the nearest pharmacy. The Committee was not provided with any information to indicate that access to existing provision of pharmaceutical services (including advanced services) is difficult for the population that the Applicant wishes to serve; dual carriageways and busy roads of themselves do not mean access is difficult, neither is the need to use public transport, no details of which are provided. The Committee was not aware of any information to demonstrate that existing pharmacies are unwilling to work with NHS England to provide enhanced or advanced services. In any case, given the indication by the Applicant that these services were identified as a need in the PNA, these were not 'unforeseen'. Those wishing to provide such services would apply to provide such services as a “current need” application following the findings in the PNA. Regulation 18(2)(b)(i) to (iii)
The Committee noted demographics as provided by the Applicant which were for Ladywood Ward, but was of the view that no information had been provided to indicate that people with a protected characteristic are having difficulty in accessing or are unable to access existing pharmaceutical services in terms of distance or barriers to access and as such would derive a significant benefit from the grant of this application. The Committee noted from the map provided by the PCT that there are several pharmacies within the vicinity of the proposed site. The Committee also noted that there are different providers of the existing pharmacies, and given the comments above on access to those pharmacies, the Committee was of the view that there is reasonable choice in the area such that the granting of this application would not lead to significant benefits based on choice. The Committee noted that the Applicant had not argued that innovative approaches would be taken with regard to the delivery of pharmaceutical services and the granting of this application would not therefore lead to significant benefits by virtue of innovation. The Committee noted that the Applicant had provided information taken from the PNA with regard to essential, advanced and enhanced services which they would be willing to provide if the application were successful. The Applicant has also provided information which shows what services are currently offered by existing pharmacies in the area. Any need identified in the PNA should be satisfied by the making of a “current needs application” under the provisions of the Regulations. Summary
The Committee concluded that there was no significant detriment of a kind described in regulation 18(2)(a). The Committee was not satisfied that the information provided demonstrates that there is difficulty in accessing current pharmaceutical services or that a pharmacy at the proposed site would improve access. The Committee was of the view that nothing had been provided to it to demonstrate (in accordance with Regulation 18(2)(b)) that the granting of this application would confer significant benefits on persons in the PCT area or satisfy it of improvements or better access (as described in Regulation 18(1)) which were not foreseen when the PCT published its PNA. Having determined that Regulation 18(2)(b) had not been satisfied, the Committee
did not need to have regard to Regulation 18(2)(c) to (e).
No deferral or refusal under Regulation 18(2)(f) was required in this case. The Committee considered whether there were any further factors to be taken into account and concluded that there were not. Given the pharmaceutical services already in place, the Committee concluded that the granting of this application would not provide better access to pharmaceutical services. DECISION
The Committee quashes the decision of the PCT. The Committee has re-determined the application and determined that it should be refused for the following reasons: The Committee has considered whether the granting of the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area covered by the PNA, or the arrangements in place for the provision of pharmaceutical services in that area and has concluded that it would not; The Committee has also considered whether the granting of the application would secure better access to pharmaceutical services and has had regard to the fact that – 6.2.2.1 there is already a reasonable choice with regard to obtaining 6.2.2.2 there is no evidence of people sharing a protected characteristic having difficulty in accessing pharmaceutical services, and 6.2.2.3 there is no evidence that innovative approaches would be taken with regard to the delivery of pharmaceutical services, Having taken these matters into account, the Committee is not satisfied that granting the application would secure improvements or better access to pharmaceutical services.
Jill Jackson
Appeal Officer

A copy of this decision is being sent to:
Rushport LLP on behalf of Firstcare (UK) Ltd
NHS England (as successor to the Heart of Birmingham Teaching PCT)

Source: http://www.nhsla.nhs.uk/fhsau/Documents/17137%20-%20Pharmaceutical%20Decisions%20(2012).pdf

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