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Pharmacy Brief - March 2014

London and Manchester Pharmacy Conferences

Our annual Pharmacy Conferences will be held at our London office on 27 March 2014 and 1 April 2014 and in Manchester at The Mercure Hotel on 29 April 2014.

The programme will include:

  • a regulatory update
  • "hypromellose transactions" - A new case study of what can go wrong in a pharmacy transaction and how to make sure it does not end in tears
  • employment law - the latest issues affecting community pharmacy
  • market entry 2014 - how NHS England and the NHS Litigation Authority are dealing with applications under the new Regulations

The conference is free, subject to availability. To reserve a place, contact our events team.

Fitness to Practise

A review of cases heard by the GPhC's Fitness to Practise Committee in 2013 throws up some interesting data. Statistically, pharmacists who were not represented at their hearings were twice as likely to be struck off than pharmacists who had representation.

50% of pharmacists who were not represented by a lawyer were removed from the register compared to a quarter of represented pharmacists.

Of course, there can be no guarantee that a pharmacist who has legal representation will avoid being struck off, but we can help to identify a defence or, if there is no defence, we can help to bring out mitigating features to help preserve reputations and livelihoods.

We can help manage the cost of representation, offering pharmacists a range of pricing options in relation to fitness to practise proceedings, including fixed fees.

Imitation is the Sincerest Form of Flattery

We are not sure whether or not to be flattered, but an applicant opposing our client's application asked if a solicitor could attend, not to represent our opponent, but so that the solicitor could learn about market entry appeal hearings.

The law governing applications is now more complex than ever, so it's going to take more than attending a hearing to get to grips with the NHS contract arrangements.

Pushing the Boundaries

After we told the Welsh Government that its decision to refuse our client's application was unlawful, and threatened to apply for judicial review, the Government agreed to have its decision set aside and to redetermine the appeal.

The application has now been granted.

In addition to usual considerations of access being taken into account, we pointed out to the Welsh Government that in a case where the nearest existing pharmacy to our client's site was across the border in England, Welsh patients who do not have to pay prescription charges at a Welsh pharmacy would have to do so if they went to a pharmacy in England, even if this was only a short distance away.

The Welsh Government agreed that patients who had to reclaim prescription charges incurred in England did not have adequate pharmaceutical services in the neighbourhood.

Locum Contracts

In our experience, few standard locum contracts reflect either current law or modern pharmacy practice. Often standard contracts don't make clear what the responsibilities and roles of locums are. It is important to both owner and locum to get the contract right, and also to ensure that HMRC recognises that locums are correctly treated as self employed. 

Wholesaling CDs 

We have recently had a number of enquiries from people with Wholesale Dealer's Licences. We have been asked if they also need a Home Office licence to sell controlled drugs.

It's important to get this right, so if you think this might affect you, please contact us for advice.

Medicines on TV

We expect to learn soon the outcome of a consultation on relaxing the restrictions on TV and radio advertising of remote prescribing. Watch this space.

Herbal Medicine Practitioners

A working party has been set up to explore the registration of herbal practitioners. Registration would enable herbal medicine practitioners to supply herbal products without the need for a marketing authorisation.

Access to Patient Records

It looks like pharmacists will finally have access to patients' medical records. There has been little focus on the legal implications.

The duty of care pharmacists owe to patients may become more burdensome because pharmacists will have to consider how much of a patient’s history to read before dispensing.

Greater care will probably need to be taken when exercising clinical judgement. The dispensing process may take longer. Be careful what you wish for!

Planning for Success

We regularly advise on planning issues. Often, these are cases in which someone seeks to open a pharmacy at the site of a GP practice and the question arises whether the premises require A1 planning consent for retail use.

Typically, the answer will depend on whether pharmacy use is ancillary. Each case depends on its own facts. In one case a few months ago, we persuaded a local authority to refuse a certificate of lawful use where planning consent for retail use had previously been refused.

The issue came before the High Court recently, when Lloyds challenged an attempt to establish a 100-hour pharmacy at a large GP practice next door to one of their own pharmacies. The GPs wanted a pharmacy in order to fund expansion of their premises.

The doctors argued that the opening of a pharmacy was ancillary to their use of the premises as a medical practice. Lloyds contended that a 100-hour pharmacy could not be ancillary to a surgery that was only open for 55 hours.

However, His Honour Judge Behrens accepted that patients might wish to collect medicines from the pharmacy at times when the surgery itself was closed, and this would be use of the pharmacy as ancillary to the surgery.

He did, however, say that the pharmacy would not be entitled to sell any product that was not ancillary or complementary to the use of the premises as a surgery.

The same issue arose in a different way recently, when one of our clients applied for relocation.

An objector argued that since our client did not have consent for A1 use and was relying on the D1 use of premises for medical purposes, our client would not be able to provide the same services as he provides at his existing premises.

The NHS Litigation Authority held that it was not concerned with planning issues, but took note of a letter from the local authority saying that a pharmacy could make retail sales so long as they were ancillary to the main use of the premises.

This article was written by David Reissner.

For more information please contact David on +44 (0)20 7203 5065 or david.reissner@crsblaw.com.