Commentary on Sections Pharmaceutical Services
155.Chapter 1 concerns pharmaceutical services provided under section 41 of the National Health Service Act 1977 (“the 1977 Act”) and in the case of one section only, corresponding services in Scotland.
156.Pharmaceutical services are provided by pharmacy contractors (who may supply and sell medicines, drugs and appliances) and by appliance contractors (who may only supply or sell appliances such as trusses, wigs and stomacare aids). Collectively, pharmacy contractors and appliance contractors are known as “chemists”.
157.In order to provide pharmaceutical services, it is necessary for a chemist to make an application to a Primary Care Trust (PCT) in England to be included in its pharmaceutical list (see section 42(2)(a) of the 1977 Act).
158.In Wales, following the abolition of Health Authorities in April 2003, the applications envisaged by section 42(2)(a) would, by operation of section 27 of the Government of Wales Act 1998, be made to the National Assembly for Wales (the Assembly). However, the Assembly has delegated the functions in respect of pharmaceutical services that were formerly undertaken by Health Authorities, to Local Health Boards (LHBs).
159.An application may only be granted where the PCT or the LHB is satisfied that it is necessary or desirable to grant the application in order to secure in the neighbourhood in which the premises are located the adequate provision of pharmaceutical services. This is known as the “necessary or desirable test” or “control of entry test”.
160.This is provided for in section 42(2)(c) of the 1977 Act. For England, the relevant regulation is regulation 12 of the National Health Service (Pharmaceutical Services) Regulations 2005 S.I. 2005/641 (“the Regulations”) (as amended). Certain exemptions to that test are set out in regulation 13 of the Regulations.
161.In Wales, the necessary or desirable (or control of entry) test is contained within regulation 4 of the National Health Service (Pharmaceutical Services) Regulations 1992 S.I.1992/662 (“the 1992 Regulations”). There are currently no exemptions to the test contained within the 1992 Regulations.
162.Chapter 1 provides for two changes. First, section 34 provides for charges to be levied in respect of a chemist’s application to a pharmaceutical list. Secondly, section 35 provides for regulations to be made authorising a PCT or LHB to take account of any proposals contained in applications relating to the sale or supply of over the counter medicines and other healthcare products and advice in relation thereto.