Automated prescription collection lockers placed outwith listed pharmaceutical premises ruled lawful by Outer House

About this case:

• Citation:
  [2023] CSOH 65
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Harrower

It was contended by the petitioner, Community Pharmacy Scotland, that the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009 required such premises to be listed, contrary to a decision taken by the Health Boards of Fife and Lothian. A subsidiary issued was raised concerning the lawfulness of the 2009 Regulations themselves and whether they were within the legislative competence of the Scottish Ministers.

The petition was heard by Lord Harrower in the Outer House of the Court of Session. Lindsay KC appeared for the petitioner and J MacGregor KC and S Dundas, advocate, for the first and second respondents. A minute of written submissions was lodged by the Lord Advocate in relation to a devolution issue that arose from the proceedings.

Frustrate the purpose

Under the 2009 Regulations, health boards must maintain a list of the names of persons who undertake to provide pharmaceutical services, and the addresses of the premises within the board’s area from which they undertake to provide them. It was the petitioner’s case that prescription collection lockers, while they did not have to be registered premises, nonetheless required to be included on that list.

The petitioner sought decree of reduction of the boards’ decisions dated 2 September 2023 that it was lawful for prescription collection lockers, that were not included in the pharmaceutical list, to be used for the collection of drugs under an NHS prescription. It also sought decree of declarator that such lockers may only be located within premises included in the pharmaceutical list in the name of the pharmacy contractor operating the lockers.

For the respondents it was submitted that the clear intention of the Regulations was to allow collection and delivery arrangements to take place on unlisted premises. The petitioner’s interpretation would frustrate the purpose of the Regulations and would mean that collection and delivery arrangements operated differently in Scotland compared to the rest of the United Kingdom.

It was also argued by the respondents and an interested party that operated prescription lockers in Scotland that, if the petitioner’s argument were correct, it would mean that the 2009 Regulations purport to regulate the place at which medicinal products may be supplied to the public. This was a matter falling within the scope of the Medicines Act 1968 and thus would be a reserved matter.

Requirement was disapplied

In his decision, Lord Harrower said of the 2009 Regulations: “Paragraph 6(1) of Schedule 1 to the 2009 regulations was central to the petitioner’s argument. It provides that, subject to regulation 11(5), pharmaceutical services shall be provided from the premises specified in the application made by the pharmacy contractor for inclusion in the pharmaceutical list. But it does not say that pharmaceutical services may only be provided from such premises.”

He continued: “What it does is to require the pharmacy contractor, as a bare minimum, to provide pharmaceutical services from the premises stated in his application. Provided he does that, he is not prevented by paragraph 6(1) from providing them elsewhere. Paragraph 6(4) does, of course, prevent him from providing pharmaceutical services elsewhere, but that is precisely the requirement that has been disapplied by paragraph 6(4A) to pharmaceutical services forming part of a collection and delivery arrangement.”

Noting that delivery to a collection locker was similar to home delivery, Lord Harrower said: “I am prepared to accept, as senior counsel for the petitioner submitted, that the take-up by the public of prescription collection lockers may have consequences for the viability of high street pharmacies. However, I reject the submission that the 2009 regulations seek to control entry to the market by requiring the listing of such lockers as premises, any more than they require the listing of homes to which prescription drugs may be delivered.”

Briefly addressing the devolution point, Lord Harrower added: “Broadly speaking, it is necessary to distinguish the board’s responsibility for securing the adequate supply of pharmaceutical services in its area from the General Pharmaceutical Council’s responsibility for setting standards for the safe and effective practice of pharmacy.”

He concluded: “Even if I were wrong in my interpretation of paragraph 6(1), such that the premises in which prescription collection lockers were situated required to be included in the pharmaceutical list, then I would have held that any connection between that requirement and the Medicines Act 1968 or the 2012 regulations was no more than loose or consequential.”

The prayer of the petition was therefore refused.