UK Offence Report

Amendment of paragraph 9

regulation 8(b) of The National Health Service (Charges and Pharmaceutical and Local Pharmaceutical Services) (Amendment) Regulations 2020

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

b after sub-paragraph (4) insert—

5 P may refuse to provide an order for

a drug that is or is purportedly in accordance with

a PTP where—

a P reasonably believes it is not

a genuine order for the person who requests, or on whose behalf is requested, the provision of the drug;

b providing it would be contrary to P’s clinical judgement;

c P or other persons are subjected to or threatened with violence by the person who requests the provision of the drug, or by any person accompanying that person; or

d the person who requests the provision of the drug, or any 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 This is the text as originally made; later amendments are not shown here.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
failing to do something the instrument requires
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 regulation 8(b)?

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. On these words an offence is committed where a person requests the provision of the drug, or by any person accompanying that person; or d the person who requests the provision of the drug, or any person accompanying that person.
  2. Not doing what the provision requires under the National Health Service (Charges and Pharmaceutical and Local Pharmaceutical Services) (Amendment) Regulations 2020, by the time it requires it to be done.
  3. 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 here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
16 October 2020
In force from
Not determined
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 amend the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (“the PLPS Regulations”). The PLPS Regulations govern the arrangements in England, under Part 7 of the National Health Service Act 2006, for the provision of pharmaceutical and local pharmaceutical services. The PLPS Regulations include the National Health Service (“NHS”) terms of service of four different types of provider: retail pharmacy businesses on pharmaceutical lists held by the NHS Commissioning Board (known as “pharmacy contractors”); dispensing appliance contractors (known as “DACs”); dispensing doctors; and the retail pharmacy businesses that hold local pharmaceutical services contracts (known as “LPS contractors”). These Regulations also amend the National Health Service (Charges for Drugs and Appliances) Regulations 2015 (“the Charges Regulations”), which include the charges payable for the supply of drugs and appliances as part of the NHS in England. These Regulations include measures that are part of the response to the coronavirus pandemic, related to which is the expansion of the national programme for immunisation against influenza. The Charges Regulations are amended to ensure that all coronavirus and influenza immunisations administered by NHS providers to eligible patients are to be supplied free of charge (regulation 29). Pharmacy contractors may, with the agreement of the NHS Commissioning Board and for a specified period, limit the NHS pharmaceutical services provided at pharmacies to the administration of vaccinations or immunisations against coronavirus and influenza (regulation 13). Provision is also made so that pharmacy contractors and dispensing doctors are required to supply against so-called “pandemic treatment protocols”, which allow for the supply, without a prescription, of prescription only medicines used for the prevention or treatment of diseases that are, or in anticipation of them being imminently, pandemic. There are supplementary provisions related to this requirement dealing with matters such as dispensing labels (regulations 2(b), 6, 7, 8(b) and 20 to 22). These Regulations also include a number of service developments, in particular for pharmacy contractors. Pharmacy contractors are required to facilitate remote access to their services (regulation 18), and pharmacy contractors and LPS contractors are required to have, and to have constant and reliable access to, the Electronic Prescription Service (the system used for the transmission of electronic prescriptions between different providers of the NHS primary care services) when they are open for business – in so far as this is within their control (regulations 17 and 28). There are also measures to deal with circumstances when the system is temporarily unavailable (regulations 8(a), 10, 24 and 26). Pharmacy contractors and LPS contractors are also required to have, and to have constant and reliable access to, a networked system of NHS patient summary care records (regulation 16 and 27), and a premises specific NHSmail account – generally with two live NHSmail accounts for their staff. They must also register with and use the Central Alerting System operated by the Medicines and Healthcare products Regulatory Agency. Additionally, pharmacy contractors must have comprehensive and accurate pharmacy profiles in the NHS Digital directory of services and on the NHS.uk website (regulations 2(a), 17 and 28). Also, where pharmacy contractors and LPS contractors are unable to supply a prescription item immediately and instead provide a note of the item that is owed, this may be in an electronic instead of a paper form (regulations 9(a) and 25). Separately, pharmacy contractors existing obligations in relation to public health campaigns are revised so that the campaigns can relate, more broadly, to health issues – and so as to support service evaluation and policy development (regulations 2(a) and 11). Their clinical governance requirements are also amended, in particular to allow those to accommodate the promotion of healthy living, and around training and certification (regulation 14). Distance selling pharmacies are also required to have a health promotion zone on their website (regulation 15). The most significant change for pharmacy contractors, however, in terms of the additional services they are expected to provide, is the introduction of a new discharge medicines service. When NHS patients are discharged from hospital or there is, for other reasons, a transfer of care of them between different providers of NHS services, community pharmacies may be asked to perform a three stage service in respect of the patient, principally linked to changes in medication. The second and third stages of this service are linked to the first prescription presented post-discharge or post-transfer. Issues of concern may be raised by the pharmacy contractor not only with the patient or their carer but also with their general practitioner (regulation 12). Partly to support this new service, pharmacies are required to have a consulting room (previously these were needed to support certain non-mandatory pharmaceutical services), although equivalent remote access arrangements are permitted for distance selling pharmacies and some small pharmacies (regulation 15). There are also changes to the inspection and access to information requirements to facilitate remote monitoring of pharmacy contractors (regulation 19), and some minor, technical changes. Pharmacy contractors are no longer formally required to undertake training in respect of repeat dispensing (regulation 9(b)), both pharmacy contractors and DACs are required to notify the NHS Commissioning Board if they enter into administration (regulation 3) and there are also changes to the notification requirements when pharmacy contractors and DACs open new premises (regulation 4).

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

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