The powers to conduct “covert directed surveillance” were authorised under the Regulation of Investigatory Powers Act (RIPA) in July 2018 to be used as part of the GPhC’s powers to inspect pharmacies. These powers might include “monitoring, observing, or listening to people”, as David Reissner, solicitor and chair of the Pharmacy Law & Ethics Association, wrote for C+D in 2019.

In April 2019, the regulator told C+D it could use those powers to, for example, investigate pharmacists suspected of diverting prescription-only medicines (POMs) to the criminal market.

However, in its council papers published ahead of a meeting this week (April 22), the regulator revealed it “had not yet used covert surveillance in enforcement activity”.

“To date, the GPhC had been able to use less intrusive methods”, the regulator wrote.

“The framework for using the powers was very prescriptive and required the relevant organisation to be able to demonstrate that it could not achieve the same ends through less intrusive means,” it added.

“Last resort”

A GPhC spokesperson told C+D today that direct surveillance will always be considered as a last resort in an investigation. These powers can only be used when authorised by RIPA and where less intrusive means of obtaining information have proven unsuccessful, they said.

The regulator has generally been able to secure compliance through other statutory powers – for instance, by placing conditions on premises registration or issuing improvement notices, according to the spokesperson.

The spokesperson clarified that the GPhC does not have powers to use an undercover informant under RIPA.

Could the GPhC use its covert surveillance powers in the future?

The GPhC does not exclude the possibility that it might need to use its surveillance powers in the future, “for example to make multiple or repeated test purchases from physical or online pharmacies”.

However, the GPhC is “keeping under review” whether it needs to retain these powers, which are currently not being used, it said in the council papers.

According to the council meeting papers, the observations on the use of “covert surveillance” powers were first shared at an audit and risk committee meeting on March 2.

Chief of staff Laura McClintock gave an update on an inspection report by the Investigatory Powers Commissioner’s Office (IPCO) – which reviews how public organisations use the investigatory powers that were granted to them.

The IPCO “noted a number of areas where the GPhC had demonstrated good practice”, the GPhC reported in its council papers.