Overcoming barriers to
collaborative working at scale
Andrew Lockhart-Mirams
Senior Partner, Lockharts Solititors
Some questions
and
Some answers
• I hope!
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When does a federation become
a practice merger?
• The two main forms of federation are:
• Loose association
• Share company
• Potential risks with loose association but not with share company.
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Can we establish a separate
company from the partnership
to manage dispensing?
• The rights and duties of a dispensing doctor are
personal
• Activities have to be carried out personally or by a “duly
authorised” “person”.
• There are no definitions of “duly authorised” and
“person”
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Persons
• By the Interpretation Act 1978 a person includes “a
body of persons corporate or unincorporate” unless
otherwise provided
• So far so good and a company can be “duly authorised”
• But is it that simple?
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The Human Medicines Regulations 2012
• Ban any person (including a company), other than a pharmacy or
pharmacist, selling or offering medicines in the course of business
• The “person” has to be lawfully conducting a retail pharmacy
business on premises that are a registered pharmacy
• And it has to be done by the pharmacist or under the supervision
of a pharmacist
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The Regulations
• Specifically consider the rights of pharmacists to allow
individuals to dispense on their behalf but under
supervision
• But no such reference is made to individuals under the
supervision (or not) of dispensing doctors.
• In contrast the Pharmacy Regulations contemplate persons
who have been “duly authorised” by the doctor to dispense
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This requires
• The Medicines Regulations to be read as saying that the
prohibition against anyone other than a pharmacist
supplying medicines does not apply to supply by Doctor
or a person "duly authorised" by them.
• This is the current position
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However
• Placing a company in between strains this wording too far.
• This would require reading the Medicines Act Regulations as
saying the restrictions do not apply to a supply to a person
(the dispenser) engaged by a company (a distinct legal
organisation) which is not a registered pharmacy at the
request of the Doctor
• In our view the wording cannot take this interpretation.
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Also of note
• Are SFE provisions in paragraph 23.18 providing that payments
are in effect only made to the contractor.
• It would seem difficult to comply with this if a company is being
used.
• Further there would be Wholesalers dealers licence issues if the
practice purchases and supplies them to a company.
• This is however subsidiary to the main interpretation point
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The answer then
• Yes, you can set up a company to run the
dispensary
• If you can establish a pharmacy company!
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In a provider company who holds
responsibility if something clinical goes
terribly wrong?
• Liability of directors
• Liability of shareholders
• NHS Standard Contract provisions
• Subcontracting
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If the whole thing goes terribly wrong?
• Member practices pull out
• Winding up
• Division of the “spoils”
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Variations to the contract
• Straight variation to cope with change of parties
• Issue of a “new” contract
• Implications for dispensing doctors
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The boring legal bit!
The content of this presentation is intended only as information and
should not be considered or relied upon as legal advice. Lockharts
cannot be held liable for any loss caused by any act or omission as a
result of the information in this presentation.
This presentation, in which Lockharts is the exclusive copyright owner, is
also confidential to those attending today’s event and must not be
disclosed to or shared with any other firm, individual or organisation.
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How Lockharts can help
•
Over 30 years experience helping general practitioners
•
“Full service” healthcare team for providers covering all aspects of
partnership, surgery premises, employment contract work and contentious
issues
•
Extensive understanding of general practice issues and ambitions and
detailed knowledge of regulation, policy, funding and contracts
•
Accredited mediators helping with facilitation
•
Structural advice and implementation of mergers and acquisitions
•
Only acts for providers and never for commissioners
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Contact Details
Lockharts Solicitors
[email protected]
020 7383 7111
www.lockharts.co.uk
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