UK Offence Report

Refusal to provide drugs or appliances ordered

regulation 39(2)(b) of The National Health Service (Pharmaceutical Services) (Amendment) (Wales) Regulations 2009

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 the person presenting the prescription form or 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 This is the text as originally made; later amendments are not shown here.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 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 regulation 39(2)(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. Doing what the provision prohibits, or failing to do what it requires under the National Health Service (Pharmaceutical Services) (Amendment) (Wales) Regulations 2009.

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
15 June 2009
In force from
17 July 2009
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 further amend the National Health Service (Pharmaceutical Services) Regulations 1992 (“the principal Regulations”). The principal Regulations govern the arrangements for the provision of pharmaceutical services under the National Health Service (Wales) Act 2006. The amendments made to the principal Regulations by these Regulations make changes to the way that pharmaceutical services are provided in localities that have been determined to be rural in character, that is, “controlled” for the purposes of the principal Regulations. These Regulations also make consequential amendments. The changes introduced by these Regulations include: Provision that prevents the grant of new applications for doctors to seek the right to provide pharmaceutical services to patients if there is a pharmacy within 1.6 kilometres of the premises from which the doctor wishes to provide such services. The rights of existing dispensing medical practices will not be affected. Local Health Boards will be required to establish a list of premises from which doctors provide pharmaceutical services within their respective area. The Local Health Board will also be required to give approval to the suitability of such premises to be used as dispensing premises (“premises approval”). Premises from which doctors are dispensing at the date of the coming into force of these Regulations, or which have had outline consent granted, will be required to secure premises approval from the Local Health Board within a period of three months of the coming into force of these Regulations. New provisions are introduced which permit an application to be made by a dispensing doctor to apply to relocate dispensing premises without being required to re-apply for outline consent and premises approval provided the Local Health Board is satisfied that the move constitutes a “minor relocation”. New provisions are introduced which will enable dispensing doctors to apply to relocate their premises or to open new premises. Such approval will only be given if the premises are more than 1.6 kilometres from any pharmacy and such approval will not take effect until 12 months after the grant of the application (to enable a pharmacy affected by the relocation an opportunity to apply to relocate). Provision is made to specify the procedure to be followed when a dispensing medical practice amalgamates with another, non-dispensing practice. Provision is included to introduce “reserved locations” within localities that have been determined to be controlled for the purposes of the principal Regulations. A reserved location is one in which the patient population (on all the patient lists) within 1.6 kilometres of the estimated or actual location of the proposed pharmacy premises is less than 2,750. Where a Local Health Board is satisfied that an area constitutes a reserved location, an application for inclusion in the pharmaceutical list in accordance with regulation 4(2) of the principal Regulations will not be subject to the “prejudice” test. Patients living within 1.6 kilometres of the new pharmacy, and who receive pharmaceutical services from a dispensing medical practice, will not lose their right to receive such services and will be able to exercise a choice as to whether to receive dispensing services from their doctor or pharmaceutical services from the pharmacy. Local Health Boards can remove (or refuse to apply) reserved location status in two circumstances: if the patient population exceeds 2,750, and if the patient population is below 2,750 but the Local Health Board considers that the needs of the patient population in the relevant location are such that they are similar to the needs in those areas with a larger population. In such circumstances an application under regulation 4(2) of the principal Regulations will be subject to the “prejudice” test. Amendments are made to enable doctors and chemists who provide services in controlled localities to appeal to the Welsh Ministers when a Local Health Board makes a determination in respect of the rurality of a locality. Hitherto, only Local Pharmaceutical Committees and Local Medical Committees have had the right to appeal such a determination. The notification requirements are extended so that Local Health Boards are required to give notice of certain applications made under the principal Regulations to any patient, consumer or community group within its area that it considers has an interest in the provision of pharmaceutical services in the area. An amendment is made to remove an anomaly which failed to require the application of the “prejudice” test for all applications made under regulation 4(2) of the principal Regulations when the proposed premises was located in a controlled locality. The terms of service for doctors who provide pharmaceutical services under the principal Regulations are substituted. A new requirement within these terms of service is that all premises used by doctors for dispensing will be subject to inspection by the Local Health Board (a similar provision already applies in relation to community pharmacies).

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