2023-10-04 12:53:23
The use of medicine collection kiosks (described as “lockers”) came under consideration recently, probably for the first time in a British court.
In The petition of Community Pharmacy Scotland [2023] CSOH 65, a decision of the Outer House, Court of Session, Community Pharmacy Scotland applied for judicial review of decisions of Fife Health Board and Lothian Health Board that it was lawful for a pharmacy owner who provided NHS services to install and operate automated collection points such as prescription lockers, from premises that were not included in the pharmaceutical lists of the Health Boards.
Barrie Dear Limited (trading as Dears Pharmacy) had NHS pharmacy “contracts” by having premises that were included in the pharmaceutical lists of the two Health Boards. The company had installed automated lockers at locations that were not included in the pharmaceutical lists. Community Pharmacy Scotland had told the Health Boards that it was outwith the NHS terms of service to provide pharmaceutical services from locations that were not in a pharmaceutical list and that the Health Boards should not pay for any services provided from unlisted locations. The Health Boards had taken the view that there was nothing wrong with what Dears Pharmacy were doing.
In Scotland, NHS services are governed by the National Health Service (Scotland) Regulations 2009 and the Scottish terms of Service are in Schedule 1. The terms of service say that pharmaceutical services shall be provided from listed premises. The terms of service also say that “no pharmacy contractor shall provide pharmaceutical services from any pharmacy or other premises that are not included in the pharmaceutical list, but this does not apply to the provision of pharmaceutical services that form part of a collection and delivery service. The terms of service also prohibit the acceptance of prescription forms at premises that are not a registered pharmacy but this prohibition also does not apply to collection and delivery arrangements.
The definition of a collection and delivery service is derived from regulation 248(2) of the Human Medicines Regulations, in general terms, it is an arrangement enabling a patient to take or send a prescription to premises other than a registered pharmacy and to collect the dispensed medicine from premises that are not a registered pharmacy. The premises must be capable of being closed to exclude the public.
Amongst other things, Community Pharmacy Scotland argued that collection lockers could only be located within listed pharmacy premises. Dears Pharmacy argued that if Community Pharmacy Scotland were right, it would mean that home delivery services were not permissible.
The judge, Lord Harrower, held that although the terms of service required pharmaceutical services to be provided from listed premises, the terms of service did not say that pharmaceutical services may only be provided from listed premises. They may be provided elsewhere under a collection and delivery arrangement.
The judge noted that collection and delivery arrangements, as defined in regulation of 248(2) of the Human Medicines Regulations require the use of premises that are capable of being closed by the occupier to exclude the public. He said:
“In that sense, delivery to a prescription collection locker is more like a home delivery, in both cases, the premises are being capable of being closed by the occupier to exclude the public. Of course, the advantage of the locker, over both the high street pharmacy and home delivery service, is that it can be accessed 24 ours a day, 7 days a week.”
The application for judicial review was rejected.
Many prescription collection lockers or kiosks now in use are located outside pharmacy premises and are accessed in much the same way as people use ATMs. The judge did not address how lockers located outside pharmacy premises are in premises or, if they are, how such premises can be closed to exclude the public.