UK Offence Report

Refusal to provide drugs or appliances ordered

paragraph 7(1) of SCHEDULE 2 of The National Health Service (Local Pharmaceutical Services etc.) Regulations 2006

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

1 A contractor may refuse to provide the drugs or appliances ordered on

a prescription form or repeatable prescription where—

a the contractor reasonably believes that it is not

a genuine order for the person named on the prescription form or the repeatable prescription (for example because he reasonably believes it has been stolen or forged);

b it appears to the contractor that—

i there is an error on the prescription form or on the repeatable prescription or, in the case of

a non-electronic repeatable prescription, its associated batch issue (including

a clinical error made by the prescriber), or

ii in the circumstances, providing the drugs or appliances would be contrary to the contractor’s clinical judgement;

c the contractor or other persons on the premises are subjected to or threatened with violence by the person presenting the prescription form or repeatable prescription or requesting the provision of drugs or appliances in accordance with an electronic prescription form or

a repeatable prescription, or by any person accompanying that person; or

d the person presenting the prescription form or repeatable prescription or requesting the provision of drugs or appliances in accordance with an electronic prescription form or

a repeatable prescription, 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 This is the text as originally made; later amendments are not shown here.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 contractor
Conduct
failing to do something the instrument requires
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (believes that).

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

Classifier’s reasoning: mens rea word in the offence-creating words: believes that.

What would breach paragraph 7(1) of SCHEDULE 2?

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. Not doing what the provision requires under the National Health Service (Local Pharmaceutical Services etc.) Regulations 2006, by the time it requires it to be done.
  2. Doing it, but not in the manner or to the standard the instrument specifies.

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
2 March 2006
In force from
1 April 2006
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 govern the arrangements for the provision of local pharmaceutical services in England under agreements, known as LPS schemes, between Primary Care Trusts, who commission the services, and independent contractors, who provide them. LPS schemes have to be made in accordance with the provisions of these Regulations and of Schedule 8A to the National Health Service Act 1977 (“the 1977 Act”). Previously, local pharmaceutical services could only be provided under pilot schemes established under Chapter 1 of Part 2 of the Health and Social Care Act 2001, but as a result of these Regulations, most pilot schemes will become LPS schemes, and new proposals for pilot schemes will no longer be accepted. Part 1 contains general provisions, including interpretation provisions – and, together with Schedule 1, provides for the application with modifications of certain provisions of the 1977 Act and the Health Service Commissioners Act 1993 that already deal with arrangements for personal medical or dental services (and with local pharmaceutical services pilot schemes) so that those provisions apply in relation to LPS schemes in a similar way. Part 2 deals with designation of priority neighbourhoods or premises, and the review, variation and cancellation of such designations. Where a neighbourhood, premises or type of premises are designated, Primary Care Trusts may defer consideration of applications for inclusion in a pharmaceutical list (under the National Health Service (Pharmaceutical Services) Regulations 2005 (“the 2005 Regulations”)) in relation to the same neighbourhood or premises. Notice of designations, and of the variation and cancellation of designations, has to be given to the interested parties listed in regulation 4(5). Part 3 sets out the general requirements in relation to contractors. Specified categories of individuals, partnerships and companies are prevented from entering into LPS schemes (regulation 7) and if the Primary Care Trust determines that an applicant falls within one of those categories, the applicant has a right to the reasons for that determination and a right of appeal (regulations 8 and 9). Contractors are given health service body status, meaning that their contract is an NHS contract, unless they elect otherwise (regulation 10). Part 4 sets out the general requirements in relation to LPS schemes. These include a requirement for certain information relating to the suitability of the applicant to be included in the proposal (regulation 12) and requirements as to the terms to be specified (regulation 14). The latter include the mandatory terms in Schedule 2, which relate to such matters as the dispensing arrangements, clinical governance, professional standards, inducements, the provision of information about fitness to practise matters, NHS charges, remuneration, complaints, dispute resolution and termination. The Primary Care Trust must also determine whether any potential contractor is to be given a right of return to its pharmaceutical list kept under the 2005 Regulations (regulation 15). The pharmaceutical list is a list of providers of pharmaceutical services who provide such services on the basis of the statutory terms of service set out in the 2005 Regulations rather than on the basis of a locally negotiated LPS scheme. Determinations of rights of return have to be sent to a list of interested parties. There are arrangements which allow Primary Care Trusts to share information that they receive about the suitability of contractors or the fitness to practise of pharmacists under the Regulations with other Primary Care Trusts and, where appropriate, the Royal Pharmaceutical Society of Great Britain (regulation 16). Part 5 contains transitional and consequential provisions. These include a duty on former pilot scheme contractors to provide Primary Care Trusts with certain information about their suitability to be a contractor, although some corporate bodies are exempt from this requirement (regulation 17). Generally, pilot scheme agreements all become LPS schemes (or for a transitional period, transitional agreements), but pilot schemes that come under the special arrangements for essential small pharmacies will continue as pilot schemes. The pilot schemes that become LPS schemes must, however, be modified so that they comply with the requirements of these Regulations (regulation 18). There are also transitional arrangements for the scheme for the designation of neighbourhoods and premises (similar to the scheme in Part 2) that was in operation for pilot schemes. A number of consequential amendments are also made to other secondary legislation to take account of the arrangements set out in these Regulations. In addition, some consequential amendments are made to the 2005 Regulations to take account of the replacement of the Prescription Pricing Authority and the NHS Counter Fraud and Security Management Service by the NHS Business Services Authority, and the definition of “supplementary prescriber” is updated (regulation 20 and Schedule 3). A full regulatory impact assessment of the effect that this instrument will have on the costs to business is available from the Medicines, Pharmacy and Industry Division, Department of Health, Skipton House, 80 London Road, London SE1 6LH. Copies have also been placed in the libraries of both Houses of Parliament.

Read the full note and every offence in this instrument

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