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'The GPhC is not quite Big Brother with its new surveillance powers'

"Covert surveillance is likely to require significant resources and training"

David Reissner considers the extent of the General Pharmaceutical Council's (GPhC) legal powers to use covert surveillance in its investigations

The GPhC’s new Registered Pharmacies Enforcement Policy, relating to its powers to enforce compliance with its standards for registered pharmacies, came into force last month. The purpose of these powers is to assure the public that pharmacy services will be safe and effective. Among the powers is the ability to operate covert surveillance within an investigation.

The GPhC says it is committed to using the minimum regulatory intervention required, which it calls “right-touch regulation”. In the policy, the regulator sets out its principal powers of enforcement and refers also to powers under the Regulation of Investigatory Powers Act 2000, known as RIPA. RIPA lays down a legal framework regulating how public authorities investigate, and how they conduct surveillance.

Once relevant and practical alternatives have been considered, a GPhC director can give authorisation for directed surveillance for a specific investigation. Any such surveillance must be carried out in a way that is proportionate, lawful and necessary.

Test purchases

When the Royal Pharmaceutical Society was the regulator, up until 2010, its inspectors would often enter a pharmacy where they suspected something was amiss. Presenting themselves as members of the public, they might make a test purchase.

In 2012, a BBC Inside Out programme exposed sales of prescription-only medicines (POMs) from London pharmacies without prescriptions. At the time, some criticised the GPhC because it had not uncovered the unlawful sales through test purchases. Such tactics now seem to be rarely used. However, they could still form part of an investigation.

The kind of surveillance governed by RIPA does not extend to residential premises or private vehicles. However, the surveillance is covert and it is aimed at obtaining private information about a person, including business or personal relationships.

Surveillance may involve monitoring, observing or listening to people, their movements, conversations or other activities and communications. It may be conducted with or without the assistance of a surveillance device. It includes recording of any information obtained. Surveillance can take different forms, including filming and still photography, but the GPhC’s powers don’t extend to phone tapping or use of undercover informants.

We haven’t entered the world of James Bond or Big Brother. Covert surveillance is likely to require significant resources and careful training of inspectors. The GPhC policy says that it will only use its powers in “very limited” cases. I doubt covert surveillance powers will be used unless there is reason to believe patients are at risk of serious harm.

GPhC guidance is in the pipeline and will shed more light, so when an inspector refers to taking a tablet, it might not be medication, but a device.

David Reissner is a consultant with law firm Charles Russell Speechlys LLP

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