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'Changing market entry rules risks pitting pharmacists against GPs'

"The pharmacy profession needs to be ready to respond to proposals"

The Department of Health and Social Care (DH) must carefully consider any changes to pharmacy market entry regulations, David Reissner warns

The DH review of how the NHS market entry regulations are operating recommends there should be a consultation on its proposed amendments, to address unintended consequences of the regulations. There are two aspects of the review that may increase the scope for friction between pharmacists and GPs.

Proving prescription direction

In my 40 years of legal practice, I have never been able to get the DH and its agencies to take an interest in prescription direction. So the market entry review is notable because the DH accepts that there is evidence of direction taking place, and proposes that NHS England develops a complaints process for suspected breaches to be reported and investigated. So far, so good – but proving prescription direction has always been difficult.

Rural regulations

Doctors in rural areas who apply for the right to supply medicines to patients living more than one mile from a pharmacy will not succeed if this would prejudice the provision of pharmaceutical services from a pharmacy.

The risk to rural pharmacies was a significant concern in the late 1990s. Before 2005, the regulations permitted a dispensing GP practice to merge with a non-dispensing practice and make all the doctors in the non-dispensing practice became dispensing doctors – as if by waving a magic wand over them.

However, the DH had made it clear that the regulations would only be changed if both the pharmacy and medical professions reached agreement. At the time, both professions had concerns about the regulations, so they negotiated a series of compromises, one of which involved amending the regulations to remove the magic wand.

Since 2005, if a dispensing doctor practice amalgamates with a non-dispensing practice, the amalgamated practice can only dispense from premises that were in the dispensing doctor list before the amalgamation. If the doctors on the amalgamated practice want dispensing rights at other premises, they must make an application – which will be refused if granting it would prejudice a pharmacy.

The market entry review found evidence that the elimination of the magic wand deters dispensing doctors from collaborative working. But the review does not recommend a change in the regulations – instead, it suggests the DH monitors the situation, and makes a further assessment by March 31, 2019.

Changes to the market entry regulations following the recent review may bring unintended consequences. The pharmacy profession needs to be ready to respond to proposals to amend the regulations in a way that may harm or fail to protect the provision of services.

David Reissner is a partner at law firm Charles Russell Speechlys LLP

3 Comments

Keith McElrea, Pharmaceutical Adviser

DoH, years ago, after implementing category M clawbacks, pressed ahead with changes to control of entry which next to no-one seemed to support at the time, but which happened anyway, some would suggest bowing to lobbying pressure from supermarkets, to allow 100 hr expemption .  They did this despite warning after warning, that the move would create an over provision of pharmacies and pharmacies which were not stable businesses or viable businesses. 

Eventually, after it had been proven those warnings were correct they decided, as they had been advised throughout that 100hr exemption was a mistake, but then spent around 2-3 years talking in the media about how they were going to to close the 100 hr loophole down, allowing plenty of time for a raft of last minute applicants and new entrants into the market. 

Now, 10 or so years down the line we're in a position where the DoH is slashing funding across the board to all, due to an over provision of pharmacies they themselves created.  We have a position were hundreds of 100 hour pharmacies are struggling due to their high operating costs and the fact the need a minimum of 3 full time pharmacist rather than one to operate, and the very supermarkets that, some may suggest where the reason they came into existence, are divesting of their pharmacy chains.  We are also in a situation where wholesalers are refusing to offer many of these pharmacies credit terms due to the percieved risk.

It is worthy of note that Scotland took a different view at the time and agreed with the advice that relaxing control of entry risked destabilising the whole network and refused to agree to the hundred hour expemtion, and while it too faces issues with the ever rising costs of medicines.  Contractors there are not facing (another) funding slash currently and are widely viewed to operate under a better and more stable contract arrangement.

Therefore, I can not help but have grave concerns when the DoH again, start talking of change to Market Entry regulations.  They have been proven to utterly lack the foresight required to make those decisions and to lack the sense to listen, and not press ahead with their 'New Idea'  when almost anyone who was asked was advising against it. 

Keith McElrea

Operations Director

Inphaserve 

Adam Hall, Community pharmacist

Competition is fine providing it applies equally to all parties. What I have never understood about the regulations allow doctors to dispense is that it is based on the distance the patient lives from a pharmacy - yet, in a great many cases, the patient will have to pass several pharmacies to get to their Dispensing Doctors in order to collect their prescription. This does not, to me, sound like it is increasing access. Much more, it sounds like a restriction on where patients can access their medicines and other dispensing services. Surely a better way would be that Doctors can dispense if the site of their dispensary is more than a mile from the nearest pharmacy, and outside the local "settlement" (be it village, town or whatever). The only possible unwanted effect I can see of this is that some of our more avaricious medical collegues mighty actually consider relocating their practice to the middle of a field!

S Morein, Pharmacy Area manager/ Operations Manager

Competition is bad how?

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