Clause 47 (Hansard, 24 June 1968)

§ The Parliamentary Secretary to the Ministry of Health (Mr. Julian Snow)
I beg to move Amendment No. 60, in 60 page 39, line 42, after "product" insert "(a)".

§ Mr. Deputy Speaker (Mr. Sydney Irving)
With this Amendment, we may discuss Amendments Nos. 61 and 62.

§ Mr. Snow
In Standing Committee on 30th April my right hon. Friend said that 61 we proposed to move an Amendment on Report to fill a gap that had been discovered in the application of Clause 47 —then Clause 46—to hospitals.
As Clause 44 is drafted, the supply of a medicinal product not on the general sale list … in circumstances corresponding to retail sale… is subject to a number of requirements including, in particular, that the supply is by a person lawfully conducting a retail pharmacy business and is supervised by a pharmacist. The expression … supply in circumstances corresponding to retail sale … is. defined in Clause 117(3)(c). In a hospital, such supply might be held to take place when the patient receives the medicine, and not, in the case of an in-patient, at the time when it is dispensed and the pharmacist hands it over to some other member of the hospital staff who will be responsible for its administration.
The expression "under the supervision of a registered pharmacist" was considered by the High Court in 1943 in the case of Roberts v. Littlewood's Mail Order Stores Limited. The court decided that a pharmacist in an upstairs room could not be said to be "supervising" a sale in the shop below which he did not know was taking place.
If these two points are taken together, it appears that the supply of a medicine not on the general sale list by a hospital to a patient would be unlawful, because the hospital was not a pharmacy business conducted under the conditions in Clause 63, and might also be unlawful if the pharmacist did not actually supervise the supply of the medicine to the patient. In addition, a hospital using a general sale list drug might be in difficulty over complying with Clause 45, especially subsection (3) which has retail shops in mind.
Clause 47, as drafted, does not fully meet this difficulty, because it refers to supply by a doctor and this would not cover the normal hospital case where the doctor gives directions for the medicine to be provided but the supply takes place from the hospital's stocks of medicine and not from the doctor's own stock.
The principal purpose of the Amendments is, accordingly, to meet this point, 62 both in hospitals and in the analogous circumstances which may arise in health centres, clinics and nursing homes. The Amendments also cover the supply of a product to an out-patient, and the supply of a product by a nurse or midwife in the exercise of her profession.
It will be necessary in due course to make provision for various other categories of person—for example, ambulance attendants, mountain rescue teams, and the like—who supply a limited range of medicinal products in circumstances where it would be quite unreasonable to require strict observance of the provisions of Clauses 44 and 45. However, these other exemptions are of less importance than those covered by the present Amendments and can, I think the House will agree, adequately be dealt with by means of Orders under Clause 49.

§ Mr. Ivor Richard (Barons Court)
I entirely agree with everything my hon. Friend says that he is trying to do by means of these Amendments, but as I am not quite sure whether it is done by this method perhaps I might make two or three points on the wording.
As I understand, the object of these Amendments is to stop up a hole, because the Bill as at present framed does not cover the case of a hospital supplying a drug under the direction of a doctor or dentist to a patient in the hospital. In that case, why is it necessary to have in Amendment No. 61 the words "… sold, offered for sale …"? I do not quite understand in what circumstances a hospital might need to sell or offer for sale in the course of its business as a hospital or health centre a drug which is to be administered in accordance with the directions of a doctor or dentist.
Exactly the same point applies to paragraph (c) in the same Amendment: in what circumstances would a midwife or certified nurse want to sell or offer to sell a drug? As my hon. Friend knows, there is a great distinction between administering a drug in accordance with a doctor's direction and selling or offering it for sale. While I entirely accept what my hon. Friends seeks to do, I am not sure whether, by including these words, he has not gone too far if the Amendment is designed to cover sales or offers for sale to the public. It would mean that a hospital or health centre would be able 63 to do so without any certified person being responsible for the sale or supply provided only that the medicine was administered in accordance with the directions of a doctor or dentist. There is an enormous gap here, and I cannot believe that that is part of the Government's intention.
Further, if it is the intention of the Government to put hospitals and health centres in a separate category, is my hon. Friend sure that the Minister's discretionary powers to make conditions in respect of them under Clause 65 would still be there if the exempion is based on the form of the Amendment? If the exemption is unconditional, I doubt whether the Minister's power under Clause 65 still exists. If so, not only does the Minister not have the power to regulate now but he may not have it in the future.
Again, can my hon. Friend imagine circumstances in which the professional duties of registered nurses and certified midwives would require them to sell or offer to sell a product, as opposed to administering it? In any case, to refer to the supply, sale or offering for sale of any medicine … by a person in the course of that person's profession … seems to go rather wide of anything that might be regarded as necessary.
Would not my hon. Friend consider that in regard to registered nurses and midwives it might not be better to deal with the matter by way of an alternative arrangement specifying the medicines that are to be affected by the exemption? I understand that there is a parallel here in the arrangements by which midwives can obtain, without prescription, certain medicines certified by the Central Mid-wives' Board as necessary for a midwife to use in her work. One might in that way avoid the wideness there seems to be in the Amendment.

§ Mr. Pavitt
I do not wish to follow my hon. Friend the Member for Barons Court (Mr. Richard) in his legal arguments—I leave that to the Parliamentary Secretary—but I agree that this widens the provisions in respect of the people named. The whole question of the provision of drugs and the supply of prescriptions is likely to be dealt with in discussion of the White Paper, which will follow, and that might affect our 64 approach to the subject. In Committee, we provided for a number of things that were not provided for earlier. We are conscious that, later, we shall be discussing the whole range of the National Health Service.
I am interested to know whether this is a paving Amendment to the kind of discussion we may have arising from the Green Paper.

§ Mr. Scott-Hopkins
I understood from the remarks of the Parliamentary Secretary in Committee that this would be a comprehensive Amendment. He would be the first to accept that there are exceptions who should be included in this list, such as ambulance drivers, and he is relying on the provisions of Clause 49 to be able to bring them in. In my constituency there is an amount of mountain rescue and pot-holing rescue. I hope that the gap between bringing the Act into force and making the Regulations will not be too great or there might be difficulty in those circumstances.

§ Mr. Snow
The point made by the hon. Member for Derbyshire, West (Mr. Scott-Hopkins) is quite correct. We thought that in the circumstances we should give priority to those most concerned, nurses and midwives. As I said in my original remarks, we shall be considering what regulation or Order might be necessary in respect of outfits such as those used by mountain rescue teams and so forth.
My hon. Friend the Member for Willesden, West (Mr. Pavitt) referred to the coming Green Paper, but this Amendment is not relevant to what is likely to be in that Paper. The direct answer to my hon. Friend the Member for Barons Court (Mr. Richard) is that we have to provide under the Bill not only for the National Health Service, but for private elements of medicine as well. The application of these Amendments is directed towards the private hospital or home where there might be sale to a patient in certain cases by the proprietor of a private nursing home or the relevant committees through agents.
With these explanations, perhaps the House might feel disposed to accept these three Amendments.

§ Mr. Ogden
My hon. Friend the Parliamentary Secretary has departed from 65 his normal practice of using some finesse in these matters and has descended to the use of a blunderbuss. The hon. Member for Derbyshire, West (Mr. Scott-Hopkins) has spoken about pot-holing rescues. That reminded me of the interests I have as representing a coalmining constituency.
I ask my hon. Friend to consider not only the sport of pot-holing, but also official mine rescue teams in the coal industry. One man in 10 in the mines, although he may not be skilled in rescue generally down the pit, is skilled in first-aid. The regulations might have to include that class of person, who is certificated for the administration of drugs and that kind of thing.

§ Mr. Snow
I can assure my hon. Friend the Member for Liverpool, West Derby (Mr. Ogden) that, since I represent a coal-mining part of England, I shall certainly watch what goes on about additional provisions required.