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Legal view: What to consider before stopping free deliveries or MDS

"Anyone who provides services to the public must comply with the Equality Act"

With more pharmacies considering reducing their services to survive, legal expert David Reissner sets out the issues to consider

Home delivery is just one example of a service many pharmacies have provided without charge. Monitored dosage systems (MDS) are another. It’s understandable that funding cuts have led pharmacies to review whether to continue to provide free services [as C+D’s exclusive poll this month revealed], but anyone who provides services to the public must comply with the Equality Act by making reasonable adjustments – at the provider’s cost – where the provider’s practice puts a disabled person at a substantial disadvantage compared with people who do not have disability.

The duty involves taking reasonable steps to avoid the disadvantage or adopting a reasonable alternative method of providing the service. Where a disabled person would be at a substantial disadvantage unless an auxiliary aid is provided, there is a duty to take reasonable steps to provide one – which is where MDS might come in.

The Equality and Human Rights Commission (EHRC) has published guidance on this. If a shop is inaccessible to disabled people with mobility impairments, the EHRC suggests that home delivery might be a reasonable adjustment. The example the EHRC gives of auxiliary aids is a shop that keeps an inexpensive portable induction loop on its counter to assist customers who use hearing aids. However, even if you normally charge for a delivery service, if the reason you provide the service to a disabled person is as a reasonable adjustment, you can’t charge them for delivery.

The key is whether any adjustments that would remove disadvantages for disabled people are reasonable. What is reasonable depends on all the circumstances, including the size and resources of the provider, and the cost of making any adjustments. Here are some essentials to consider:

  • Are disabled people at a substantial disadvantage in accessing your services?
  • Assess their needs and whether you can take reasonable steps to avoid the disadvantage – don’t wait to be asked.
  • You can’t charge for adjustments you make.
  • A large business is likely to have the resources to provide a delivery service even though the cost at a particular branch might be relatively high.
  • Let disabled people know how you can meet their needs; if they aren’t made aware of adjustments you make, the adjustments might not be reasonable.

If it wouldn’t be affordable to make adjustments, fair enough. You only have to do what’s reasonable, but it would be hard to justify a decision not to make adjustments if you haven’t at least looked into it.

David Reissner is chair of the Pharmacy Law and Ethics Association

29 Comments

Reeyah H, Community pharmacist

I can only think of one disability which would render the need for an MDS- a  movement disability in the fingers. Everything else doesn’t require an MDS as a reasonable adjustment. If the patient is forgetful - that’s not a disability. If it’s dementia, then the MDS is an absolute no no. The only thing MDS sorts in the majority of patients is that it makes it CONVENIENT for them. Everyone should pay, except the ones with movement disorders who cannot get tablets out of blisters. 

Lucky Ex-Locum, Superintendent Pharmacist

Question then is - how do they get the tablets out of the MDS?

Adam Hall, Community pharmacist

Our CCG has issued all pharmacies with a flow chart in the event of an mds request - it has 7 steps which must be answered 'No' before MDS is even considered - and you haven't even got to any objections the pharmacist may raise!

C A, Community pharmacist

What CCG is that? I would like to see it.

Kevin Cottrell, Locum pharmacist

The key to all of this is to conduct an assessment as to whether or not the patient is covered by the DDA (assessment form on PSNC website). If they are then reasonable adjustments must be made. If that means weekly deliveries then the GP is equally obliged to write 7 day scripts, as we cannot dispense weekly against a 28 day script. We would, in that instance be in breach of our terms of service, which require us to dispense a prescription in a timely manner. 

 

Roy Sinclair, Community pharmacist

Who remembers the old debate about Childproof containers and the fact that the only group who could always get them open were children. The same argument  came up when foil packing was introduced- children finding them easy while the elderly struggled. Disabled people need pharmacy support - what happens to  a housebound patient with a paid carer who cannot leave the house to collect medicines? The problem isn't with the patient but that the system is expected to be provided without appropriate resources / funding. Many NHS Hospitals stopped providing MDSs because of the overall high cost for minimal benefit. These services (delivery and MDSs) are needed but also need to be supported and funded appropriately.   

bilal hussain, Community pharmacist

With the recent cuts, reduced staffing and increased workload I'm hearing of more and more pharmacies refusing to take on new dosette patients until the rxs are issued with weekly quantities. Dosettes take way too long to make and check, with no extra payment to accommodate for the increased work.

Where do we legally stand with refusing a dosette because a pharmacy cannot safely handle it and are unwilling to increase staff hours for a monthly rx?

Adam Hall, Community pharmacist

You can only refuse a request for MDS after carrying out some sort of assessment as to the needs of the patient. If a patient cannot manage to get medication from original packs (always the preferred option) with the possible support of a MAR chart to act as a reminder/record then there are bigger problems not solved by MDS, as it points towards the patient being unable to look after themselves. You could always refer any patient to an alternative supplier but I consider it better if local pharmacies have a consensus of approach to MDS requests, which can be a challenge if the multiples are involved. 

Lucky Ex-Locum, Superintendent Pharmacist

As far as I am aware, you are perfectly within your rights to refuse a dosette. You can't refuse to DISPENSE the item but MDS is not an essential service so therefore you don't have to do it that way.

C A, Community pharmacist

How do housebound patients access groceries from Tescos or the like? Do they waive delivery fees for housebound customers? If not how are they complying with the EA?

Richard MacLeavy, Non Pharmacist Branch Manager

I wonder what the response would be if you phoned Tesco and asked if they could measure out a bag of muesli into several bowls (which they need to provide free of charge) and deliver 7 of the bowls each week free of charge and 3 months later you will pay them the £3 for the bag of muesli and you are requesting this service under the equality act. 

SP Ph, Community pharmacist

You forgot the PRN pint of beer almost every evening between 5pm till Midnight or a bit later if awake!!!

stacey gregory, Community pharmacist

Don’t know whether to laugh or cry reading this?  How about applying this to GP surgeries when they fax an “urgent delivery” script to us long after the time when they knowcour drivers have gone home? Or when a GP drops a script in to us after a home visit-“you’ll just have to do it on your way home” he says!  Where is their duty of care, their respect for a patient’s disability? Why is always us Pharmacists who have to worry about whether or not a patient is able to access their meds-especially when there a medical/ nursing staff going to the patient’s home anyway?  I don’t know any Pharmacist who would go home st the end of the night knowing that a patient was going without their medication if it was needed that day-we have all been late for family events, birthday parties, kids swimming lessons, etc because we’ve had to make deliveries on our way home, usually because someone at the surgery “assumed” it would be ok.  When will people realise that this is not an NHS funded service?

A.S. Singh, Community pharmacist

One option would be to set a meeting up with all local pharmacy owners within a town. Agree on a delivery fee system for patients. Pass the agreement to local LPC for proposal plans and legally binding agreements and make sure all independants have a chance to voice thier opinion. Then once passed, impose sanctions agianst pharmacy owners who intend to undercut thier collegues. Problem is you must justify if the agreement is just- but the more independents involved- the greater the chance. Doh passed the pharmacy funding cuts and didnt involve pharmacists (involved MPs who have no clue about our service) and how that would subsequently effect patient care? 

Adam Hall, Community pharmacist

Sadly, that may be seen as a cartel, which is illegal

Ben Merriman, Community pharmacist

I of course will yield to a man with the knowledge and experience of Mr Reissner but my understanding is that the Equality Act 2010 would not cover supply of MDS to a patient with a paid for carer; the carer is paid to overcome any disability that patient has so the service provider has no need to make reasonable adjustments. I have always been of the belief that EA adjustments (of course no longer paid for but incorporated into the single activity fee) are obligatory (whatever they may be) only for those who would otherwise be independent.

Of course, for over 25 years, pharmacies, rightly or wrongly, have been offering such services (as well as delivery, Rx ordering and collection, etc) for free almost as a loss leader to gain Rx volume.

Adam Hall, Community pharmacist

Patients with paid carers are not entitled to mds-type adjustments, if the carer helps with administration of medicine because the adjustment would then be for the benefit of the carer (non-DDA) and not the patient. However, many carers or their agencies will claim they are not trained to administer medicines unless they are in an MDS. I give this two responses - 1. What is in the care service contract? 2. If a carer touches an mds tray, they assume responsibility for it's contents and any arising liability, since the obvious defense would be 'It was fine when it left the pharmacy - the carer made the mistake. Prove me wrong' Strangely, it is usually this second one that gets carer agencies rethinking their approach

A B, Community pharmacist

I think you are correct, but I don't think he is referring to patients with paid carers (he doesn't mention them at least).

Ben Merriman, Community pharmacist

No but I suspect a pretty big proportion ofDS in any given pharmacy will be due to carers' "inability" to administer from original packs

Lucky Ex-Locum, Superintendent Pharmacist

How can charging everyone the same be seen as any way predjudicial against disabled people? 

A B, Community pharmacist

I think he means that if there is no way a disabled person can access the pharmacy to collect their medcines safely e.g. no ramp for someone in a wheelchair, you can't charge for delivery (if the pharmacy provides a delivery service). A bit like how DSPs can't charge because there is no option to collect medication.

I might be wrong but that is how I interpret what he is saying.

C A, Community pharmacist

Conversely if there is a ramp, or the Pharmacy is on flat ground with no impediment to entry/egress, does that mean it's OK to charge everybody?

Lucky Ex-Locum, Superintendent Pharmacist

It would be predjudicial against able-bodied people not to charge everyone equally in that scenario. I get a bit fed up with so-called 'equality' issues which to my mind, seriously discriminate against majorities.

Leon The Apothecary, Student

"In general, there is insufficient evidence to support the benefits of MCAs in improving medicines adherence in patients, and the available evidence does not support recommendations for the use of MCA as a panacea in health or social care policy. Care should be provided in a way that supports patient independence and re-enablement; MCAs can inadvertently perpetuate dependence and disempowerment." - Brighton and Hove CCG, Blister packs FAQs for Prescribers

https://psnc.org.uk/communitypharmacyss/wp-content/uploads/sites/121/2017/10/Blister-Packs-FAQ-final-March-2014-agreed-LPC-LMC-NHS-England-BHCCG.pdf

Lucky Ex-Locum, Superintendent Pharmacist

In my experience, the majority of requests for Dosettes and the like come from patients themselves who can't be bothered to look after their own medication and want us to do everything for them. I even have a dosette (started by a previous pharmacist, I hasten to add...) which has one item in it which is popped out of a blister with the days of the week on it to be redispensed into a blister with the days of the week on it. How gormless is that??

C A, Community pharmacist

That is totally pointless in my opinion, it adds unnecessary risk and extra work to the dispensing process. Can you not go through a Equality Act review with the patient (they should be done once a year I think) and review the results?

Chris Locum, Locum pharmacist

I think in some cases, contractors engaged with gormless culture to receive regular scripts and increased volume. In the event they sold up, the eventual zero-sum remuneration baton was passed onto those believing there is a bright financial future.

SP Ph, Community pharmacist

Excellent. 

Infact, all major NHS agencies including NICE are against the provision of MCAs. I read an article somewhere which actually suggested medication errors from making a MCA to patient mistakenly taking wrong meds have made more dangerous than original pack dispensing.

Now, just for argument sake, how do the so called disabled people get about with their day to day jobs like washing, cleaning cooking, shopping etc?? How can delivery of only the medicines free of cost change the disability of a person? I can understand making reasonable changes to physical accessabilty to a Pharmacy like the ramp or Large Labels or the induction loop etc to be part of the payment we receive for complying with the Equality Act. But how can you term things that are provided by individual Pharmacies as a sole purpose of building portfolio of loyal customers to increase prescription volumes?

The only way anyone may be questioned would be if a service (MDS or Delivery) is provided free to some and not to someone who can officially prove to be disabled atleast on paper.

So just scrap the services to the entire population or charge everyone who wants the service. I am sure this way the legal battle would be much easier.

Lucky Ex-Locum, Superintendent Pharmacist

This is absolutely true. Given that the use of MDS is designed for people who cannot administer their own medications properly, how are they supposed to recognise an error which we all know can far too easily happen in a busy pharmacy. I suspect the main reason carehomes etc. were so keen on MDS was because it meant that they could employ less skilled and therefore cheaper staff to increase their profit margins. If MDS was withdrawn now, either the homes would have to invest in expensive training regimes (which no doubt they would try to get the sucker pharmacies to fund alongside the fridges, CD cabinets, faxes and paperwork they routinely attempt to mug off us) to upskill their staff or else the error rates will go up enormously.

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