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.
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