Scots health boards and Dears Pharmacy win script locker dispute against CPS

A Scottish court ruled last week (September 26) that prescription collection lockers in Scotland do not need to be on premises that are registered on a regional health board’s pharmaceutical list.

Community Pharmacy Scotland (CPS) had petitioned for a judicial review of decisions made by health boards NHS Fife and NHS Lothian regarding the use of prescription lockers by contractors such as Dears Pharmacy on premises that were not on their lists, the ruling said.

The matter was heard by Lord Harrower in the Outer House, Court of Session, with the health boards responding and Dears Pharmacy making submissions as an “interested party”, it added.

Scottish group Dears operates pharmacy premises that are on the pharmaceutical lists of each health board, as well as prescription collection lockers at locations that are not at these listed premises, according to the Pharmacy Law and Ethics Association (PLEA).

Prescription collection lockers are used by some pharmacies both in Scotland and across the wider UK, sometimes outside the premises and accessible at any time by patients via a PIN code, to deposit prescriptions and collect drugs and appliances once dispensed, the ruling explained.

Undermining the viability of pharmacies?

According to the ruling, NHS Fife and NHS Lothian had previously decided that it was “lawful” for pharmacy contractors to operate “automated collection points” or prescription lockers from premises that were not on either health boards’ pharmaceutical list.

But CPS had objected on the grounds that it believed the regulations dictated that pharmaceutical services could not be provided from locations that were not in a pharmaceutical list.

It said that “prescription collection lockers must be included” in the list and argued that such lockers “may only be located within premises” included in the list in the name of the pharmacy contractor operating them.

As such, CPS argued that it would be “unlawful” for health boards to pay for any services provided from unlisted locations such as these lockers.

It said that “to hold otherwise would undermine the viability of other pharmacies within the board’s area”.

While CPS argued that lockers could only be located within listed pharmacy premises, Dears Pharmacy argued that this would result in “absurd” consequences such as meaning that home delivery services would also “fall foul” of regulations.

Unlisted lockers lawful

Lord Harrower found that prescription lockers from unlisted premises were permissible, however he ruled that the regulations “would not permit” pharmacy contractors to only use lockers to deliver pharmaceutical services.

He said that prescription forms can be “taken to premises other than a registered pharmacy”, provided this premises is “capable of being closed to the public”, but the “preparation and dispensing” of medicinal products must be carried out at a registered pharmacy.

But he added that was “prepared to accept” that these lockers “may have consequences for the viability of high street pharmacies” if they became more commonly used by the public.

The health boards and Dears had also argued that CPS’s argument would result in the regulations being “outside the legislative competence of the Scottish Ministers”, but the ruling found that “no devolution issue arises”.

CPS “considering next steps”

Matt Barclay, CPS director of operations and its incoming chief executive, told C+D yesterday (October 5) that CPS had noted the ruling.

He said that CPS’s board would be “considering next steps”, keeping “the best interests of the Scottish pharmacy network” at the forefront.

Nevertheless, Mr Barclay added that CPS was “pleased that the judgement supports the competence of the Scottish Government to set the regulations in this space”.

The negotiator revealed last month that it has promoted Mr Barclay to its top job as successor to current chief executive Harry McQuillan from February.