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Serious Shortage Protocols in the Court of Appeal

Posted: Thursday, May 2nd, 2019

We reported recently that Mr Justice Supperstone had refused an application by The Good Law Project for permission to apply for judicial review of amendments to the Human Medicines Regulations that empower Ministers to introduce Serious Shortage Protocols.

Last week, Lord Justice Hickinbottom granted The Good Law Project permission to appeal against the refusal to the Court of Appeal. There is a single ground of appeal, namely that Ministers did not have power to make the Regulations. Lord Justice Hickinbottom said he found Mr Justice Supperstone's judgment "compelling", but was persuaded that The Good Law Project should have an opportunity to argue its case at a hearing.

Because the case partly depends on whether the UK has a no-deal Brexit, the judge directed an expedited hearing.

 

 

New GPhC guidance on online pharmacy and hub & spoke

Posted: Tuesday, April 16th, 2019

Last year, PLEA responded to a General Pharmaceutical Council consultation on the provision of online pharmacy services. The GPhC has just published new guidance on this and on hub & spoke dispensing.  The guidance is detailed. Here are some of the key points:

The provision of pharmacy services at a distance, particularly online, carries particular risks by its nature. Risk assessments should be carried out.

If a pharmacy works with prescribers or prescribing services operating outside the UK, they should make sure that:

Pharmacies should carry out a regular audit and keep records of

When parts of a pharmacy service take place at different locations (such as in a ‘hub and spoke’ or ‘click and collect’ service) pharmacies must be clear about which pharmacist is accountable and responsible for each part of the service, and which pharmacy technician and other staff are involved. When medicines are not given to the person or their representative in the registered pharmacy, but are delivered by a member of staff or an agent to the person’s home or workplace, there may be more risk of medicines being lost or delivered to the wrong person. Pharmacies must make sure there are clear lines of accountability and responsibility in these circumstances. If pharmacies contract out any part of your pharmacy service to a third party, pharmacies are still responsible for providing it safely and effectively. They should carry out ‘due diligence’ in selecting any contractors.

When there is no face-to-face contact, pharmacies should consider what information they and their staff record and keep to show that the pharmacy service provided is safe.

Pharmacy websites should be clear and not mislead pharmacy service users about the identity or location of the pharmacies involved in providing pharmacy services. This includes the identity and location of any online prescribing service.

Pharmacies should be able to show how they are assured that all prescribers, whether medical or non-medical, follow relevant guidance.

Websites should ensure that a person cannot choose a POM and its quantity before there has been an appropriate consultation with a prescriber.

Websites should display prominently:

Pharmacies should:

Finally, the guidance says that websites should look professional.

 

Bawa-Garba review decision

Posted: Wednesday, April 10th, 2019

Dr Haditha Bawa-Garba's review hearing at the Medical Practitioners Tribunal was taking place at the same time as our annual seminar, making our presentation on gross negligence manslaughter even more topical. During the presentation, we learned that Dr Bawa-Garba had been allowed to resume practice subject to conditions.  The MPTS decision can be found here https://www.mpts-uk.org/hearings-and-decisions/medical-practitioners-tribunals/dr-hadiza-bawa-garba-apr-19 

Brexit amendments to Human Medicines Regulations

Posted: Wednesday, April 10th, 2019

The Human Medicines (Amendment etc.) (EU Exit) Regulations 2019 were made last week. These Regulations will come into force on the day the UK exits the EU (whenever that is). The Regulations will amend the Human Medicines Regulations 2012 (HMR). The stated purposes are “to ensure [the Regulations] are fit for purpose in a no deal EU Exit scenario” and allows the MHRA to function as a standalone regulator, while continuing to recognise prescriptions from the EU/EEA.

The amendments are numerous. Here is a summary of some of them, based on an Explanatory Memorandum that accompanies the Regulations:

 

 

 

 

 

 

 

EEA and Swiss prescriptions after Brexit

Posted: Sunday, April 7th, 2019

The Department of Health and Social Care has issued guidance for dealing with EEA and Swiss prescriptions in the event that the UK leaves the European Union on 12 April 2019 with no deal.

In short, pharmacists are advised to continute to dispense EEA and Swiss prescriptions in line with current guidance.  The full DHSC guidance can be found here https://www.gov.uk/guidance/prescriptions-issued-in-the-eea-and-switzerland-guidance-for-pharmacists 

High Court rejects legal challenge to serious shortage protocols

Posted: Monday, April 1st, 2019

As we reported on 17 March 2019, the Good Law Project (GLP) had applied for judicial review of the Human Medicines (Amendment) Regulations that had come into force on 9 February 2019. These Regulations had given ministers power to introduce serious shortage protocols (as well as implementing the Falsified Medicines Directive).

The case is The Queen (on the application of Good Law Project Limited) v Secretary of State for Health and Social Care [2019] EWHC 800 (Admin). GLP argued that, amongst other things, the Secretary of State did not have power to make the Regulations, that serious shortage protocols would be inconsistent with section 64 of the Medicines Act 1068, and that there had not been proper consultation, and that he had failed to comply with his public sector equality duty.

In order to bring judicial review proceedings, GLP had to demonstrate an arguable case.  Initially, after considering the papers, Mr Justice Swift had concluded that the case was not arguable.  GLP renewed its application at an oral hearing before Mr Justice Supperstone.  On 29 March 2019, Mr Justice Supperstone delivered a written judgment, finding that an arguable case has not been demonstrated.

In relation to section 64 of the Medicines Act, the judge described serious shortage protocols as "a parallel system to prescriptions". It is implicit in this observation that a pharmacist who made a supply in accordance with a serious shortage protocol could not be prosecuted under section 64 of the Medicines Act if a patient was harmed through receiving an alternative medicine to the one prescribed. Rulings on applications for permission to apply for judicial review usually follow short hearings without full argument, so the judgments that are handed down are not precedents that are binding on judges in future cases.  Nevertheless, Mr Justice Supperstone's ruling may deter any prosecutions and may have some persuasive effect if any prosecution is brought.

 

 

 

GPhC enforcement policy for pharmacy premises

Posted: Wednesday, March 27th, 2019

The General Pharmaceutical Council has published an enforcement policy for registered premises https://www.pharmacyregulation.org/sites/default/files/document/registered_pharmacies_enforcement_policy.pdf 

The policy:

The policy states that the GPhC is committed to using the minimum regulatory intervention required to achieve the desired result, known as “right-touch regulation”.

In addition to setting out its enforcement options and the criteria for taking enforcement action, the GPhC refers to its powers under the Regulation of Investigatory Powers Act 2000 (known as “RIPA”) to carry out covert surveillance if authorised by a Director.  

The GPhC is expected to publish guidance on enforcement in the near future.

Claire Bryce-Smith, Director of Insights, Intelligence and Inspection at the GPhC, will address some of these issues in her presentation at our annual seminar on 9 April 2019 at the offices of Charles Russell Speechlys LLP, 5 Fleet Place, London EC4M 7RD. To book a free place, members should go to https://www.plea.org.uk/events.htm and log in.  Anyone who has forgotten their log in details should email david.reissner@virgin.net

Judgment against GP set aside

Posted: Sunday, March 24th, 2019

In a News item on 11 December 2018, we reported on the case of Brayshaw v Partners in Apsley Surgery. It appears that the GP who was found to have been negligent had not been served with any of the court papers so the case against him proceeded in his absence. The GP only found out about the case when the judgment was drawn to his attention. In Brayshaw v Partners of Apsley Surgery [2018] EWHC 3286 (QB), the judgment against the GP was set aside, though the judgment in respect of the allegations against the partners in the Apsley Surgery remains intact.

Legal challenge to serious shortage protocols

Posted: Sunday, March 17th, 2019

The Human Medicines Regulations (HMR) were amended with effect from 9 February 2019.  The amendments implemented the Falsified Medicines Directive and gave ministers powers to introduce serious shortage protocols – see our News item of 20 January 2019.

The Good Law Project, a non-profit organisation that says it “fight[s] cases to defend, define or change the law” in the areas of Brexit, tax and workers’ rights, has applied for permission to bring judicial review proceedings to quash the serious shortage protocol powers.

The grounds of challenge (paraphrased) include:

Judicial review is a two-stage process.  If a judge, usually considering the papers without a hearing, considers that the claimant has an arguable case, permission will be given for a full hearing. The Good Law Project has asked for the papers to be considered urgently and for any full hearing to be expedited.

The DHSC has filed a document at the High Court with its grounds for resisting the judicial review application, contending that the Good Law Project lacks sufficient status to even bring the case, and that its grounds are not properly arguable. It points out that if the judicial review case succeeded, the UK would be left without an important tool by which the Secretary of State can address any serious drug shortages arising, including post Brexit.

David Reissner has written a blog on the judicial review application which can be read here https://www.chemistanddruggist.co.uk/opinion/-legal-challenge-against-shortages-powers-surprise 

 

Which country's professional standards apply?

Posted: Monday, March 11th, 2019

In Pantula Sastry v General Medical Council [2019] EWHC 390 (Admin), Mr Justice May heard an appeal by a medical practitioner against a decision to remove his name from the medical register.

Dr Sastry had worked at a hospital in India in 2013 and 2014.  He then worked in the UK for 4 years without incident.  It was alleged that his treatment of a patient in India had led to the patient’s death. The treatment was the subject of an allegation that the doctor was unfit to practise by reason of misconduct. The Medical Practitioner Tribunal determined the case according to UK Good Medical Practice.

Dr Sastry argued that the Tribunal failed to have sufficient regard to the context that practices, laws and standards in India, where the treatment had taken place, were different to those in the UK. The court held that when considering whether a registrant undertaking professional duties outside the UK had fallen short of standards of professional conduct which the UK public was entitled to expect from its doctors, a tribunal had to take into account any particular limitations or local practices which applied in the foreign location. However, since the GMC’s remit was to protect the public in the UK and to promote proper professional standards in the UK, it was bound to assess conduct with UK professional standards in mind.

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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.