Medicines shortages have been much in the news and, following a short and informal consultation with pharmacies, the Department of Health and Social Care (DH) is changing the law from February 9 to allow an alternative prescription medicine to be supplied in certain circumstances. These circumstances are unrelated to Brexit.

Where a minister believes that there is a serious shortage of a specific prescription-only medicine (POM), the minister may issue a written serious shortage protocol (SSP) that provides for the sale or supply of either: a different strength, quantity or pharmaceutical form to that prescribed; or a different POM.

Protocols will be developed with and signed off centrally by clinicians. They may list what alternative products may be supplied by pharmacists without referring back to prescribers. Some products, for example, for the treatment of epilepsy, will not be covered by SSPs, and patients will have to be referred back to prescribers.

When a SSP has been issued, pharmacists will be freed from the legal requirement to supply only in accordance with a prescription, provided that they supply one of the following:

1. A generic equivalent of what has been prescribed
2. In the case of a biological medicinal product, a similar medicinal product
3. A therapeutically similar POM.

Any sale or supply under a SSP must be made by or under the supervision of a pharmacist who is of the opinion, in the exercise of his or her professional skill and judgement, that:

1. If a different strength, quantity or pharmaceutical form is supplied, it is reasonable and appropriate
2. If a different POM is supplied, it is reasonable to do so and the directions for use of the substituted product are appropriate.

Supplying an alternative POM without meeting the SSP conditions would involve the criminal offence of supplying otherwise than in accordance with a prescription.

If a patient is harmed by substitution, this is arguably an offence under section 64 of the Medicines Act 1968, but unless a pharmacist’s judgement has been shown to be flawed, the Crown Prosecution Service may decide that prosecution would not be in the public interest. Substitution will also be a breach of the NHS terms of service. Hopefully, NHS England will have the common sense not to take action, despite its poor track record for using common sense before issuing breach notices.

SSPs will have to be reviewed a year after issue and a stakeholder consultation will be conducted as part of the review.

The DH believes the main benefits of the protocol would be the NHS cost savings associated with GP time, but acknowledges that there may be some risks to patients. The DH expects that the impact on community pharmacies will be neutral: there will be cost savings through not having to liaise with GPs, but pharmacies will need to inform the GP when they dispense against a protocol. They may also be required to do further checks, which they would not do when dispensing against a prescription.

David Reissner is a consultant with law firm Charles Russell Speechlys LLP