An expert in pharmacy law has told Pharmacy Business it would be unlawful for Clinical Commissioning Groups to scrap prescription items as local and national government embarks on a wide-scale NHS efficiency drive.
David Reissner, (pictured) a partner at Charles Russell Speechlys, said The National Health Service (General Medical Services Contracts) Regulations 2004 meant it was not possible from a legal standpoint for CCGs to make some items unavailable.
The regulations list the items a GP cannot prescribe on the NHS in England. Reissner said only those items and any new additions to the list can lawfully be made unavailable on prescription.
When asked if it was legal for any CCG to scrap a prescription item, he said: “It seems to me that CCGs cannot lawfully scrap prescription items. GPs in England have contracts with NHS England.”
Pointing to the General Medical Services Contracts regulation, he said: “If NHS England or a CCG can persuade the Secretary of State to add items to the list of items that cannot be prescribed, then GPs can lawfully be prevented from prescribing those items.
“If an item is not on the list, my view is that neither CCGs nor NHS England is entitled to override the clinical judgement of GPs.
“When making decisions, public bodies, like ministers, NHS England and CCGs, must have regard to the public sector equality duty in section 149 of the Equality Act when making any decisions.
“Amongst other things, this involves eliminating discrimination and having due regard to the needs of people with protected characteristics and taking into account the needs of people with disabilities.
“You may remember that this duty was canvassed by the NPA in the remuneration judicial review. Any decision regarding the prescribability of medicines must take the public sector equality duty into account.”
When asked if patients could take a CCG to court for scrapping a product Reissner said: “It is possible that disadvantaged patients or interested organisations may sue. The prospects of a successful legal challenge will depend on exactly what a CCG does and how it does it.”
Insisting Charles Russell Speechlys had not been approached by anyone looking to legally challenge a CCG, he said: “We haven’t yet been asked to advise but we are keeping an eye on developments.”
A three-month consultation by NHS England on proposals to stop certain medicines being prescribed in primary care ended on October 21.