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Legal challenge to accreditation of homeopathic practitioners

Posted: Wednesday, October 30th, 2019

Yesterday's newspapers carried the story that Sir Simon Stevens, the Chief Executive of NHS England, had written to the Professional Standards Authority about its decision to re-accredit the Society of Homeopaths.

Under a scheme set up by the then Department of Health in 2014, the Professional Standards Authority for Health and Social Care (PSA) accredited a voluntary register maintained by the Society of Homeopaths. Homeopathic practitioners on the register can display a quality mark to signify that they meet the PSA’s standards. The accreditation is subject to annual review.

In April 2019, the PSA published its annual review for the year 2018/19. It renewed the accreditation and made a number of recommendations. As part of the review, audits of registrants’ websites were carried out. The audits focussed on registrants who practised CEASE (Complete Elimination of Autistic Spectrum Expression) therapy and/or vaccination-related therapy. CEASE therapy suggests that there is a direct link from vaccination and other conventional medicine to the causes of autism and other serious health conditions, and the CEASE website made claims that conflicted with the advice of the NHS and had the potential to cause harm if followed. 

The re-accreditation of the Society of Homeopaths by the PSA is currently the subject of a pending application for judicial review by the Good Thinking Society because the Society of Homeopaths’ register includes practitioners that offer and promote CEASE therapy. The Good Thinking Society argues that the PSA failed in its legal duty to consider the potential effects of its decision on disabled people, such as the autistic children at whom CEASE therapy is aimed.  It also argues that the decision to re-accredit, given what the PSA knew about CEASE therapy, was irrational. 

 

 

Passing off medicines and trade mark infringement - the colour purple

Posted: Thursday, October 17th, 2019

In Glaxo Wellcome UK Ltd v Sandoz Ltd [2019] EWHC 2545 (Ch), Mr Justice Arnold had to rule on a claim by Glaxo that Sandoz were passing off a generic Accuhaler as Glaxo’s Seretide. Seretide has purple colouring and the claim was largely based on the adoption by Sandoz of a similar colour scheme. Glaxo alleged that patients were likely think that the Sandoz inhaler was from the manufacturers of Seretide and that the use of the colour purple misrepresented to healthcare professionals and patients that the generic inhaler was equivalent to the Accuhaler even though its mechanism, strength and licenced use were different.

Mr Justice Arnold dismissed Glaxo’s claims. He found there was no evidence that patients would assume that any purple inhaler came from the manufacturers of Seretide and there was no evidence that patients had been confused. There was no evidence of confusion on the part of healthcare professionals.

When describing the regulatory regime relating to the supply of medicinal products, the judge noted (paragraph 43) the requirement in regulation 214 of the Human Medicines Regulations 2012 to supply a Prescription Only Medicine in accordance with a prescription, and observed that if a pharmacist supplied a generic medicine when a branded product had been prescribed, this would not only be an offence, but also a trade mark infringement and/or the tort of passing off.

Veterinary medicines after Brexit

Posted: Thursday, October 17th, 2019

The Government has announced that all veterinary medicines authorised for use in the UK will continue to be authorised after Brexit and can remain on the market for sale and supply in their existing packaging https://www.gov.uk/government/news/veterinary-medicines-will-continue-to-be-available-after-brexit-joint-statement-from-vmd-and-noah?utm_source=a036be0e-fdc4-47e9-9e43-abebfeaf6481&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Government Brexit Guidance on medicines and medical devices

Posted: Thursday, October 10th, 2019

The Government has published a raft of Brexit guidance relating to medicines. The guidance specifically relates to a no-deal Brexit. There is too much to summarise here. A list of the guidance and the links is as follows:

GPhC whistleblowing report

Posted: Wednesday, September 18th, 2019

The 9 healthcare regulators have just published an annual report on the way whistleblowing disclosures have been dealt with.  The aim of the report is to increase transparency in the way that whistleblowing disclosures are dealt with and to raise confidence among whistleblowers that their disclosures are taken seriously.

The GPhC’s section of the report records the following responses to whistleblowing disclosures received between 1 April 2018 and 31 March 2019:

Under review                                      7

Closed with no action taken                 3

Onward referral to alternative body      1

Regulatory action taken                      5

In addition, one disclosure received during the previous reporting period was concluded with guidance.  

Equality Act and withdrawing pharmacy services

Posted: Friday, August 30th, 2019

In an article just published in Chemist & Druggist, David Reissner looks at the Equality Act implications of withdrawing pharmacy services.  The article can be accessed here: https://www.chemistanddruggist.co.uk/opinion/legal-view-what-consider-stopping-free-deliveries-or-mds 

GPhC Publication and disclosure policy in FtP cases

Posted: Sunday, August 25th, 2019

Last Summer, we responded to a GPhC consultation on its Publication and disclosure policy. The new policy has now been published https://www.pharmacyregulation.org/sites/default/files/document/gphc-publication-and-disclosure-policy-gphc0034-august-2019.pdf.

As well as setting out the GPhC’s new policy for publishing the reports of pharmacy inspections, the policy includes:

 

 

 

 

 

 

Court rules on whether there is a right to silence in Fitness to Practise proceedings

Posted: Thursday, August 15th, 2019

In The Queen (on the application of Evgeniy Kuzmin) v GMC [2019] EWHC 2129 the High Court addressed the question of whether a medical practitioner had a right to silence when appearing before the Medical Practitioner Tribunal and whether adverse inferences could be drawn from silence. As explained below, the significance of the case is not limited to proceedings involving medical practitioners.

Background

Dr Kuzmin was working for an out-of-hours service. He was accused, amongst other things, of poor record keeping. Pending a final hearing, conditions were placed on his registration. These conditions included a requirement to notify any out-of-hours service of the conditions. Dr Kuzmin did not notify an employer of the conditions. No misconduct was found in relation to the original allegations, but it was alleged that the failure to notify the out-of-hours service of the conditions on his registration was misconduct.

In fitness to practise proceedings before the Medical Practitioner Tribunal, Dr Kuzmin filed a written statement, strenuously denying dishonesty and said that any failure was a “complete oversight”. At the conclusion of the GMC’s presentation of its case, Dr Kuzmin’s barrister submitted that there was no case to answer. That submission was unsuccessful. Dr Kuzmin then withdrew his statement and declined to give evidence.

The GMC argued that the Tribunal could draw an adverse inference from the refusal to give evidence and that there was no innocent explanation for the doctor’s failure to inform the out-of-hours service of the conditions imposed on his registration. The Tribunal decided it could draw inferences from silence. The case was then adjourned so that Dr Kuzmin could apply to the High Court for judicial review.

Judgment

The High Court (Lord Justice Hickinbottom and Mr Justice Butcher) held:

  1. Disciplinary proceedings are civil, not criminal proceedings (in which a defendant has different rights and protections);
  2. Ordinarily the public would expect a professional man to give an account of his actions – there is no right to silence in disciplinary/fitness to practise cases;
  3. It would not be unfair if the possibility that an adverse inference might be drawn makes a healthcare professional feel obliged to give evidence;
  4. Whether an adverse inference is drawn in any particular case will be “highly dependent upon the facts of the particular case”;
  5. No inference will be drawn unless:

The significance for pharmacists and other healthcare professionals

The significance of this decision is not limited to cases against medical practitioners. The Court cited an earlier judgment concerning a pharmacist - R (Panjawani) v Royal Pharmaceutical Society of Great Britain [2002] EWHC 1127 (Admin) as authority for its decision (1) that there is no right to silence in professional disciplinary proceedings; and (2) that adverse inferences can be drawn from silence in proper circumstances. That was a case in which a pharmacist was accused of failing to account for a quantity of Viagra, but had failed to explain what had become of it. In fact, the pharmacist successfully argued that an adverse inference should not have been drawn because the regulator had never given him a proper opportunity to explain what had happened to the Viagra.

The recent Kuzmin case is also of importance to all healthcare professionals because Lord Justice Higginbottom suggested it might be useful for all healthcare regulators to give guidance on the existence of the power to draw adverse inferences and how it might be used in fitness to practise cases.

 

Hub & Spoke - change to pharmacy law announced

Posted: Tuesday, July 23rd, 2019

In its announcement yesterday of a new funding package for community pharmacy, the Governement also announced that it will will "pursue legislative change to allow all pharmacies to benefit from more efficient hub and spoke dispensing, enabling increased use of automation and all the benefits that that brings".

The Government also proposes to amend the NHS market entry regulations to make it easier for two pharmacies to merge and then close one of them with less risk that someone else will apply for a new pharmacy "contract" to replace the one that closed.

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These news items are not exhaustive but are selected according to their relevance to pharmacy practice, NHS community pharmacy contracts and the regulation of the pharmacy profession. If you wish to add any items that you think we have missed, contact our news editor.