23 September 2008
Control of Entry - Whatever Next?

The Department of Health's consultation on the future of control of entry is entitled Building on Strengths, but it reads like a long confession, admitting the opportunities it missed and the mistakes made when the NHS Regulations were amended in 2005.

Perhaps the key feature of the consultation paper, published in the wake of the Pharmacy White paper in April this year, is that control of entry is here to stay: the Department recognises that a system of control of entry is needed in order to provide sufficient reassurance to pharmacy owners to invest in their businesses and expand services in line with Government policy. >>more>>

20 February 2008
First costs order in Pharmacy Disciplinary Proceedings
Rules made under the Pharmacists and Pharmacy Technicians Order 2007, have given the Royal Pharmaceutical Society’s Disciplinary Committee power to order parties to disciplinary proceedings to pay legal costs. The former Chair of the Disciplinary Committee, Lord Fraser of Carmyllie QC, had gone on record as saying that the new power would not normally be exercised. >>more>>

Lawyers Save Lives
It's not often lawyers can claim to save lives. Unlike pharmacists, whose daily activities involve healthcare advice that can save lives, we lawyers can't usually claim to do anything as important. However, we have recently been able to advise clients in Risk Management issues. Risk Management is now part of the NHS pharmacy contract. We have analysed errors and advised on how to reduce the risk of repetition. We can look at how errors have been handled (including recording them, and dealing with patients, PCTs or the RPS). We can look at SOPs, and advise on possible improvements and check whether SOPs are being followed in practice and whether there are potential problems over legal and ethical compliance in all aspects of pharmacy business.

Fitness to Practise - 101 ways for a PCT to go wrong in one simple case

Our client owns a pharmacy in his own name, and is Superintendent Pharmacist of another company. The Royal Pharmaceutical Society investigated several incidents in pharmacies which were owned by the company. Our client voluntarily reported all of the incidents to the Society himself. The Society accepted our representations that none of the allegations were sufficiently serious as to give a real prospect of a finding of misconduct by the Statutory Committee and either took no action or issued a written warning in relation to the allegations.

Our client also self-reported the incidents to the PCT in whose pharmaceutical list the company was included (as he was required to do by the NHS Terms of Service).

The PCT invited the superintendent to attend a meeting to discuss the issues without telling him the nature or purpose of the meeting. After the meeting the PCT wrote to the superintendent notifying him that they were using their powers under the NHS Act 1977 to contingently remove him from the PCT's list subject to certain conditions because they were concerned that the matters raised caused them to consider that his continued inclusion "would be prejudicial to the services which those included in the list undertake to provide" (which is the test under the NHS Act). They made this decision in respect of the Superintendent personally, rather than against the company, even though none of the incidents occurred at the pharmacy owned by our client.

We were instructed to appeal. The Family Health Services Appeal Authority decided that:

1 The PCT should have properly notified our client of the purpose of the hearing to allow him to know what he was facing and to prepare his case appropriately, including arranging for legal representation, given the serious consequences that could have followed the meeting;

2 It was inappropriate to seek to contingently remove our client from the PCT's pharmaceutical list in respect of premises that he owned in his own name. Where the incidents occurred in a pharmacy owned by a limited company, the usual procedure would be to proceed against the company. The Appeal Authority went on to say that "We can see, for example, that there may be facts which give rise to an irresistible inference that a Superintendent Pharmacist for a company is so flawed in his conduct of the business of the company that he cannot be regarded as capable of carrying on a similar business in his personal capacity without prejudice to the efficiency of the services...That is not this case..."

3 Where the PCT makes a finding that a person should be contingently removed from its pharmaceutical list to protect the efficiency of the NHS, it must explicitly state this finding and give reasons for the decision. Failure by the PCT to do so in our client's case amounted to "...a serious omission in the processes adopted by the PCT" according to the Appeal Authority.

4 Conditions can only be imposed where these are clearly and carefully defined and where they will serve an objective. Conditions should be agreed with the pharmacist so that everyone knows what is expected, save in "exceptional case[s]". Failure to do this could risk a pharmacist being removed from the PCT's list for failure to comply with conditions that he did not properly understand and that could not be objectively tested. The PCT's proposed condition in this case was "...too vague and non-specific to be fair or workable".

We know that PCTs are using their fitness to practise powers more but often lack the legal knowledge to follow the correct procedure or give full and proper reasons for their decisions. Since the consequences of a fitness to practise investigation could be removal from the PCT's list, we advise that all pharmacists notified of an investigation by the PCT should seek swift legal advice.

Practice Based Commissioning
If you missed Noel Wardle's article in Pharmacy Business magazine on Practice Based Commissioning, please call Stephanie Palmer on 020 7203 5065 or email Stephanie.palmer@charlesrussell.co.uk

For further information please contact David Reissner on 020 7203 5065.