UK: Pharmacy Brief - March 2012

Last Updated: 14 February 2012
Article by David Reissner

London Pharmacy Conference

Our first Pharmacy Conference of 2012 was heavily oversubscribed before we had begun to promote it, so we are going to re-run the conference in London on 23 March 2012.

We will cover topics based on feedback from those of you who attended last year's conference:

  • Recent regulatory issues including exports and specials
  • Arrangements with GPs
  • Trends in pharmacy transactions
  • Market entry and market exit from 2012

The conference is free, but subject to availability. To reserve a place, email claire.jones@charlesrussell.co.uk.

Asbestos – New Regulations and a Reminder

In September 2011 Marks and Spencer was fined £1m and ordered to pay £600,000 costs for a failure to take proper care when removing asbestos during refurbishment of two shops. The case was a useful reminder to property owners and occupiers of the legal duties imposed on them. The Control of Asbestos Regulations 2006 require owners and occupiers of nondomestic premises to determine whether asbestos is present and manage the risks it poses. Failure to comply may give rise to criminal sanctions as well as civil liability. New regulations are expected to come into force in April 2012 which will remove some of the exemptions that previously existed for lower risk activities.

Clinical Governance

The CR Pharmacy team has given a series of presentations on Clinical Governance. Some key questions raised were "Who is a Pharmacy Technician?" and "Are the new clinical governance arrangements part of the pharmacy contract?"

  • A Pharmacy Technician is defined by what he or she does, not by qualification or training (although all staff must have suitable training and must not act outside their competence). If someone acts as a Pharmacy Technician, they must be registered with the GPhC whether they have completed a course or not.
  • Clinical governance is part of the terms of service within the NHS Regulations. The terms of service are commonly called the pharmacy contract. Breach of the terms of service can result in a discipline committee hearing and a decision to withhold remuneration.

Disqualified from Owning a Pharmacy?

Our client was a director of a company with 4 pharmacies, one of which had recurrent issues such as failing to dispose of date-expired stock. He ended up in front of the old Statutory Committee in 2005 and was reprimanded. By the time he applied for a pharmacy contract last year, there had been no further complaint. But the PCT turned down the application on fitness to practise grounds. What's more, they decided that if he was unfit to practise in its locality, he was unfit to hold a contract anywhere and applied for a national disqualification.

We represented our client on an appeal to the First Tier Tribunal. The Tribunal recognised that some of the events relied on by the PCT had occurred 13 years before, and that there had been no complaint since 2005. A national disqualification would be warranted only by the most serious misconduct. The Tribunal upheld our client's case so that his application for a pharmacy contract could be granted.

Criminal Dispensing Errors

In our view, proposals to introduce a "due diligence" defence for pharmacists accused of committing a criminal offence when they make a dispensing error will be a waste of time. There will be very few circumstances in which, having failed to spot the wrong thing is being given out, a pharmacist could say due diligence had been used.

Convicted pharmacists will have a criminal record for life, because convictions are never spent. Proper decriminalisation is easily achievable if the will is there.

NI Drug Tariff

We represented Community Pharmacy Northern Ireland in its recent successful judicial review of the Government's decision to slash £38m from payments to pharmacy owners. The NI Health Department had conducted separate consultations on fees and on reimbursement prices, refusing to take the effect of reducing the former when proposing to reduce the latter, and it announced its decision on prices before the consultation on proposed fee reductions had even been concluded.

Mr Justice Treacy held that the new Drug Tariff was unlawful because no impact assessment had been carried out, and no proper consultation had taken place.

English language

Competence in English is a feature of the draft new market entry regulations. It is a bit of a surprise, therefore, that both the Secretary of State and Duncan Rudkin of the GPhC have been reported as saying that a health regulator does not have power to undertake language checks on European practitioners because doing so would offend EU law. The EU Commissioner for the internal market apparently disagrees. He is reported as saying language checks are not outlawed. They are a matter for member states.

It's a Deal

Over the last few months we have seen a steady increase in the number of transactions. It is reassuring to see a continued healthy appetite for acquisition being shown by buyers.

Recently completed transactions handled by Tim Jenkins and the Team include:-

  • Acting for Zinbake Limited on the sale of its Berkshire based pharmacy to a local pharmacy contractor
  • Acting for the administrators (PKF (UK) LLP) of North End Supplies Limited on the disposal of a London based pharmacy to Novapharma Limited
  • Acting for the operator of a London based pharmacy on its sale (by way of relocation to a health centre pharmacy) to a regional pharmacy group
  • Acting for Buntingford Healthcare Limited in relation to its acquisition of Hertfordshire based K&M Shah Chemists
  • Acting for Hyperchem Limited on its purchase of London based Armstrong Chemist
  • Acting for the administrators (PKF (UK) LLP) of Worldsunny Limited on the disposal of a Barnsley based pharmacy to JM McGill Limited

Our understanding of pharmacy businesses enables us to offer a competitively priced, added value, full service for clients both large and small and whether buying or selling companies, pharmacy partnerships or sole trader businesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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