UK Offence Report

Refusal to provide appliances ordered

paragraph 7(d) of SCHEDULE 3 of The National Health Service (Pharmaceutical Services) Regulations 2005

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

d the person presenting the prescription form or requesting the provision of appliances in accordance with an electronic prescription form or any other person accompanying that person, commits or threatens to commit

a criminal offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach paragraph 7(d) of SCHEDULE 3?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the National Health Service (Pharmaceutical Services) Regulations 2005.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
10 March 2005
In force from
1 April 2005
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations replace the National Health Service (Pharmaceutical Services) Regulations 1992 which govern the provision of pharmaceutical services under Part 2 of the National Health Service Act 1977. Primary Care Trusts are required to keep lists of persons providing pharmaceutical services in their area (regulation 4) and provide for applications to be made for inclusion in a list and for amendment to a list (regulation 5 and Schedule 4). Regulation 5(1) sets out the different types of applications. Relatively straightforward applications are dealt with under their own provisions (regulation 6 (minor relocations within a Primary Care Trust’s area), regulation 7 (minor relocations between neighbouring Primary Care Trusts), regulation 8 (changes of ownership), regulation 9 (applications following suspension), regulation 10 (returning to the pharmaceutical list after providing local pharmaceutical services) and regulation 54 (the temporary provision of services during a period of suspension)). The grant or refusal of other applications (including applications to be included in the pharmaceutical list for the first time) are dealt with under regulations 11 and 13 to 21. The procedures for determining these applications are listed in regulation 22 and depend essentially on whether the application relates to a controlled locality (which is typically a rural area) or not. Where the application does not concern premises in a controlled locality, it will be determined in accordance with the procedures set out in regulations 12(2) to (4), 22(4), and 23 to 30. Where the application does concern premises within a controlled locality, it will be determined in accordance with regulations 12(2) to (4), 22(4), 25, 26, 28, and 30 to 38. Generally, applications will only be granted if the Primary Care Trust considers that it is necessary or desirable to do so in order to secure the adequate provision of pharmaceutical services in its area (regulation 12). However, in certain circumstances, applications will be granted without satisfying this requirement. These circumstances are: a where the premises are in an approved retail area, which is essentially a large out of town centre shopping development (regulation 13(1)(a) and 15), b where the premises will be open for at least 100 hours a week (regulation 13(1)(b)), c where the premises are in a new one-stop primary care centre where a number of primary health care services are provided from a discrete building or site (regulation 13(1)(c) and 16), and d where the pharmaceutical services are not provided at the premises, but are instead provided by the Internet or by mail order (regulation 13(1)(d)). The Regulations allow the Primary Care Trust to consider the fitness to practise of applicants. The Primary Care Trust can refuse an application (regulation 19) or can impose conditions on the applicant’s entry in the list (regulation 21). Once included in a pharmaceutical list or a dispensing doctors list, a chemist or doctor must provide pharmaceutical services in accordance with the terms of service. The terms of service for pharmacists are set out in Schedule 1. All pharmacists must provide the essential services described in Part 2 of that Schedule. The terms of service for dispensing doctors are set out in Schedule 2, and those for appliance contractors are set out in Schedule 3. Part 3 of the Regulations concern matters arising after the applicant has been included in the pharmaceutical list and is primarily concerned with fitness to practise issues. It provides for the review of conditions imposed on fitness to practise grounds (regulations 42 and 43), removal from the pharmaceutical list (regulations 44 to 49), suspension from the pharmaceutical list (regulations 50 and 54), review of fitness to practise decisions (regulations 51 and 52) and withdrawal from the pharmaceutical list (regulation 53). The right of appeal against decisions in relation to fitness to practise matters is to the Family Health Services Appeals Authority. Part 4 of the Regulations make provision for the payment of chemists (regulations 56 to 59). Part 5 of the Regulations make provision for doctors to provide pharmaceutical services to patients in limited circumstances (regulations 60 to 69). Part 6 of the Regulations makes miscellaneous provision regarding publication of particulars (regulation 70), the keeping of a list of chemists who provide an electronic prescription service (regulation 71), choice of chemist by patients (regulation 72) and transitional provisions (regulations 73 and 74). Regulation 75(1) and Schedule 5 make amendments to other legislation consequential on these Regulations and regulation 75(2) and Schedule 6 revoke legislation consequential on these Regulations.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person “commits an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source