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Can contractors force locums into Pharmacy First? – A legal perspective

A recent argument questioned whether contractors can require locums to be trained to provide Pharmacy First services. David Reissner gives a legal perspective…

It is a matter of regret that there seems to be almost constant friction and mutual mistrust between pharmacy owners and locums. A recent issue concerns the report that Asda are declining to engage locums who refuse to offer the Pharmacy First service.

From a professional conduct and contractual perspective, I see a number of issues. The NHS service specification for Pharmacy First says: “Before commencement of the service, the pharmacy contractor must ensure that pharmacists and pharmacy staff providing the service are competent to do so, including the use of an otoscope (except for contractors entering the NHS England [NHSE] pharmaceutical list under a distance-selling exemption) and be familiar with the clinical pathways, clinical protocol and PGDs.” 

This firmly places an obligation on owners to make positive checks on competence. From the point of view of locums, the General Pharmaceutical Council’s (GPhC) Standards for Pharmacy Professionals say that they must “reflect on the application of their knowledge and skills and keep them up-to-date” and, when using their professional judgement, pharmacy professionals must “recognise the limits of their competence”.

This does not mean that locums must learn the skills necessary to provide the Pharmacy First service, but it does mean that locums must not provide the service if they do not have the necessary knowledge or skills; and they must not hold themselves out to an owner as having competence that they lack.

Owners who breach the service specification by engaging a locum without checking the locum’s competence to provide Pharmacy First services may find that they receive a claim to repay fees they have received for those services. The owner may also find themselves facing a misconduct allegation brought by the GPhC or even an allegation of criminal fraud.

Read more: What do recent regulatory changes mean for 100-hour community pharmacies?

A locum who holds themselves out has having competence they lack, or who acts outside their competence may also be accused of misconduct and brought before the GPhC’s Fitness to Practise Committee. A locum who lied about qualifications to secure an engagement may be committing a criminal fraud.

In 2022, the Supreme Court heard the case of Jon Andrewes who lied on his CV to get a job as chief executive officer (CEO) of a hospice. He was convicted of fraud and received a two-year prison sentence. An application was made under the Proceeds of Crime Act to strip Mr Andrewes of every penny he had been paid in the job he was not qualified for.

Read more: Legal view: What obligations does the pholcodine recall put on pharmacists?

The Supreme Court held that such an outcome would be disproportionate, but said it would not have been disproportionate if the actual rendering of services was illegal, for example if a surgeon performed operations without the required qualifications. A locum who provided the Pharmacy First service without the required competence could find themselves in a similar position to such a surgeon.

It is up to a pharmacy owner to decide what services they want to provide from a pharmacy and the services a locum would be required to provide should be spelled out in a legal contract which a locum is free to accept or reject.

The contract will dictate the rights of the owner and the locum. Unless the contract says something different, a pharmacy owner cannot insist a locum undergoes training to provide the Pharmacy First service, so if an owner decides to provide the Pharmacy First service, the only thing an owner can do is decline to engage a locum if the owner is not satisfied about the locum’s competence. However, if the contract does not say that the locum will be required to provide the Pharmacy First service, a locum who has accepted an engagement cannot be forced to provide the service. 

Read more: Does a pharmacist have to answer a patient's phone call?

Locums are usually treated by HMRC as self-employed for tax purposes. A locum who incurs training costs may be able to set these costs off against income tax. However, if an owner provides a locum with training or pays for a locum’s training to provide the Pharmacy First service, this may jeopardise the locum’s status as self-employed and HMRC may take the view that the locum is, in fact, an employee. The owner may become liable for the deduction of tax and National Insurance.

This is likely to be a General Election year. If the Labour Party wins the election, its policies indicate that an incoming government will look very closely at self-employed status, so both pharmacy owners and locums will want to take care to ensure that their arrangements do not raise questions about a locum’s tax status.

 

David Reissner is professor of pharmacy and medicines law at the University of Nottingham and chair of the Pharmacy Law & Ethics Association

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