On 29 August this year the Department of Health published a consultation document on the future of pharmaceutical services in England & Wales. The consultation underway is extremely comprehensive and covers all aspects of pharmacy in England.
The Department has identified what it believes to be “a number of shortcomings with the current arrangements”. The Department, in the consultation are proposing a new legislative basis for determining whether or not a pharmacy contractor provides NHS services to replace the “necessary or desirable” test (the control of entry). There is a proposal to replace this test with one based on local Pharmaceutical Needs Assessments (‘PNA’). The revised test proposed in the consultation is :
“First, a PCT would be obliged to grant an application where it is satisfied that to do so will secure or will help secure the overall adequacy of pharmaceutical service provision in its area judged against the PNA. Second, a PCT would grant the application if it considers that, judged against the PNA, it would secure these improvements in or improved access to the provision of pharmaceutical services for that area when considered against these range of factors”.
The Department has indicated that this new test may be introduced gradually to allow it to be evaluated before it becomes the standard.
Of principal interest to Dispensing Doctors will be the proposals in Chapter 4 of the consultation which deals specifically with GP dispensing.
The Department have reiterated that the need for a cross-subsidy from dispensing income to support the provision of medical services is “ultimately, anti-competitive” and should be “exceptional”. Those practices who have taken advice on the “prejudice test”, or received decisions from their PCT and/or NHSLA regarding this test, will be aware of the difficulties of invoking this test to protect a dispensing practice in the event of a pharmacy making an application in the neighbourhood.
The consultation highlights the anomalies that can arise under the present regulatory arrangements, such as where patients who live in close proximity to one another being treated differently and that a pharmacy may be very close to a practice but the practice may retain dispensing rights.
The Department has conducted a Financial Impact Assessment and has determined that the costs of GP dispensing are higher than where a GP prescribes and a pharmacy dispenses.
The Impact Assessment associated with Chapter 4 sets out that the option to abolish all dispensing doctors has been eliminated from the consultation and has left four options to be considered. These are:
Option 1 is no change. This is the option supported by the Dispensing Doctors Association Ltd.
Option 2 is that whilst continuing with current arrangements where GP dispensing applies in controlled localities, the existing specific distance criteria would be removed. This would allow PCTs to determine the rural localities where GP dispensing is appropriate on the basis of their PNA.
Option 3 would mean that, instead of the distance between the patient’s home and the pharmacy, the determining factor should be a distance between the dispensing surgery and the nearest community pharmacy. Such a distance could be put at less than the current 1.6 km, for example, at 500 m or at 1000 m.
Option 4 is a variation of Option 3. It would mean that a GP would not dispense where there is a pharmacy within, for example, 500 m or 1000 m of the GP practice and a second pharmacy within 1500 m. Those who are permitted to dispense may do so to all their registered patients regardless of the distance between their home and the surgery or pharmacy.
It is inappropriate for solicitors to advocate in favour of any of the proposals, however, the above changes, dependent on which is selected, may impact, whether adversely or otherwise, on dispensing practices. Lockharts Solicitors is experienced in healthcare, regulatory and relevant pharmacy law and can advise practices on how the law, and these changes may affect dispensing practice.
Where it is appropriate, Lockharts can also advise about practices forming pharmacy companies and making applications to get on the Pharmaceutical List. This option is increasing being explored by dispensing practices to protect their future income against applications by pharmacy companies in their area.
Until any changes in the law are enacted Lockharts will continue to act for practices seeking to challenge pharmacy applications under the present Regulations. For further information please contact Andrew Lockhart-Mirams at alm@lockharts.co.uk or Michael Rourke at mbr@lockharts.co.uk
