HL Deb 03 June 1997 vol 580 cc615-24

5.50 p.m.

Baroness Flather

My Lords, I beg to move that this Bill be now read a second time. I bring this Bill, which is even shorter than the previous one, contrary to what my noble friend Lady Eccles said, before your Lordships in the interests of protecting the public but also in the interests of protecting the reputation of some 40,000 pharmacists.

First, however, let me say how pleased I am to see the noble Baroness, Lady Jay, on the Government Bench opposite. It is a pleasure to be able to see her as I talk to her on this occasion. I believe that that is the only advantage so far of being in opposition.

The purpose of the Bill is to ensure that when a pharmacist's misconduct or criminal conviction is proved to the satisfaction of the Statutory Committee, which is the disciplinary committee of the Royal Pharmaceutical Society, that committee has the power, where appropriate, immediately to suspend the pharmacist from the register in order to protect the public, and indeed also when it is in the best interests of the pharmacist himself or herself.

This is a single issue Bill. It does not change anything except in regard to the power to suspend with immediate effect a pharmacist who should be suspended in the interests of protecting the public. At the present time that is not possible. Such a power was given to the GMC in 1970 after the notorious case of Dr. Petrov, who was dispensing controlled drugs to all and sundry. He was stopped from dispensing controlled drugs but continued to dispense all the other substances which did not come under the description of controlled drugs. The power was given to the GMC as a result of that case. I hope that in the case of pharmacists it will not be necessary that someone should put the public at risk before this matter is taken on board.

At this stage, I should declare an interest, however vicarious. My husband has been for the past seven years the chairman of the Statutory Committee of the Royal Pharmaceutical Society. He was appointed by the Privy Council, is independent of the Royal Pharmaceutical Society and is a QC, a Bencher of the Inner Temple and a deputy High Court judge.

Under Section 11 of the Pharmacy Act, it is expressly provided that a direction that the pharmacist should be suspended, shall not take effect until the expiration of three months from the giving of notice of the direction". So he has three months of working normally. Granting three months' grace before erasure of his name is almost certainly because Section 10 of the Act allows a person aggrieved by a direction of the committee a right within three months to appeal to the High Court against that direction. He has the right to appeal within three months. It is also important to note that, whenever an aggrieved pharmacist appeals to the High Court, Section 11 of the Act provides that the direction appealed against shall not take effect until the appeal is determined or withdrawn.

It is not unknown for pharmacists to put in an appeal just before the three months are up and then withdraw it after a number of months. That can give those pharmacists who have been found wanting by the Statutory Committee—indeed, who have been convicted perhaps in the courts as well—up to one year in which to continue to practise normally in the pharmacy.

I am sure that your Lordships will not feel happy that you, your families or children might go to a pharmacy where there is a pharmacist who is dispensing medicines quite normally but who would not be able to practise if this power existed. Moreover, if he has been doing something unacceptable, he may even be doing more of it because he only has one year in which to continue to do it. After that time he will surely be suspended and he may be taking advantage of that situation to dispense the kind of drugs which may not come under the description of controlled drugs but are nevertheless dangerous.

This particular power has become even more urgent since the recent passage of the Pharmacists (Unfitness to Practise) Act 1997. At this point I should like to take a moment to mention Michael Shersby, a Member of the other place, who died very suddenly on 8th May. He took that Bill through the other place before it came to this House. It is very sad for me to remember that he and I had agreed to take through this Bill jointly, myself in your Lordships' House and he in the other place. It is a matter of great sadness to me personally as well as in my role as a Member of this House that he is no longer with us.

The Pharmacists (Unfitness to Practise) Act allows for immediate suspension. The anomaly exists only in the case of the Statutory Committee, which has no power to give a direction of immediate interim suspension. There have been a number of cases in which my husband has felt very concerned about this matter and has spoken out publicly within the Council. Perhaps I may offer one or two examples just to give the flavour of the problem.

There was a locum pharmacist dealing controlled drugs from her place of work for her partner. There have been a number of cases in which pharmacists have exercised little or no proper control over controlled drugs. Quite often that type of case involves the disappearance of drugs of addiction known to have entered the pharmacy. That is quite often explained as having been due to the export of those drugs but more usually they find their way onto the black market. An unusual situation is where a pharmacist feels that he knows better than the doctors and will continue to make suggestions contrary to what the doctor may have prescribed. A pharmacist may make serious errors when dispensing, not because of physical impairment—that will now be dealt with under the Pharmacists (Unfitness to Practise) Act—but because the pharmacy itself operates in a muddle and confusion. Lastly, there is a category of sheer wickedness: pharmacists who sell drugs for profit to drug addicts without prescriptions. They are small in number but nevertheless it is a very serious issue when it comes before the Statutory Committee.

The protection of the public must be of paramount importance. But also the reputations of the 40,000 pharmacists deserve to be protected. The fact that pharmacists, bad or indifferent, may go on practising for up to one year in spite of their activities having been brought before the Statutory Committee, their guilt having been proved and the Statutory Committee having felt that they should not be practising, does no good for the reputation of the profession of pharmacists.

I hope that the House will consider this issue. It does not affect any other matter in the Pharmacy Act, which is due for a full review, but that will require government time. I hope your Lordships will consider this single point and take action as quickly as possible through the means of this Bill. I commend the Bill to the House.

Moved, That the Bill be read a second time.—(Baroness Flather.)

6.1 p.m.

Baroness Cumberlege

My Lords, I start by congratulating my noble friend on bringing this item before your Lordships' House and on her unquestioned commitment to the safety of the British people. As this is a Second Reading, I should like to pay a tribute to the pharmaceutical profession—40,000 men and women, the vast majority of whom contribute greatly to the health needs of this country's population. They are a huge source of advice and help not only to the worried well but also to those suffering from self-limiting conditions.

I have been told that on average every woman goes into Boots the Chemist at least once every three weeks. That is a huge exposure and presents unparalleled opportunities for promoting good health and education. It is a responsibility that many pharmacists in thousands of outlets take seriously, as the comprehensive display of information and literature testifies. But it is not so much the written word as the sympathetic, professional approach that is so valued by people in the high street.

My noble friend Lady Flather, in her clear exposition of the Bill, said—as was also said by my noble friend Lady Gardner of Parkes when she took her Pharmacists (Fitness to Practise) Bill through your Lordships' House—that, as in all walks of life, there are some who fail themselves and some who fail their profession. They must be dealt with—pour encourager les autres and to safeguard the public. In his helpful brief Mr. Gary Flather, whom we have heard is a Queen's Counsel and also chairman of the Statutory Committee of the Royal Pharmaceutical Society, clearly sets out the necessity for a measure of this type, as was also highlighted today by my noble friend.

We on these Benches strongly support the principle that lies behind the Bill and agree with its objectives. However, I understand that there may be some problems as to its current drafting in that it may not achieve my noble friend's desired intention. But that is a matter for the Minister and her legal advisers.

My second point concerns appeal against a decision of the Statutory Committee and the fact that immediate action should be taken. As the Bill is currently drafted, that appeal would be to the High Court. When we were discussing the Pharmacists (Fitness to Practise) Bill, we were keen to ensure that the appeal mechanism would be distinct from the courts, leaving the possibility of judicial review. The appeal mechanism is designed to ensure speedy decision-making without adversely affecting the rights of the individual.

The problem relating to appeals in the Pharmacy Act 1954—which is the Act to be amended in order to enable the provisions in this Bill—is that it can take nine months to a year before an appeal is heard. If that appeal is successful, the pharmacist concerned will lose a considerable amount of income. Perhaps my noble friend would like to consider that point.

Lastly, I understand that a recent judgment (on 14th February of this year) before Mr. Justice Ognall reinforced the view that the Statutory Committee should have powers to impose sanctions which are less than an order that a name should be removed from the register. Thus powers of suspension for a specified period, or perhaps in the case of a corporate body powers to impose financial penalties, would greatly assist the flexibility of the disciplinary machinery. There may be advantages in having a range of sanctions so that the sentence more accurately fits the crime. But that is another matter which my noble friend may like to consider.

Finally, I congratulate my noble friend once again and thank her for bringing this important matter before your Lordships' House and for her commitment to the safety of the public. I wish her every success in her endeavours.

6.5 p.m.

Baroness Jay of Paddington

My Lords, I too thank the noble Baroness, Lady Flather, for so clearly explaining her reasons for bringing this Bill before your Lordships' House. I thank also the noble Baroness, Lady Cumberlege, for her authoritative remarks on the issue.

The concern of the noble Baroness, Lady Flather, for the immediate protection of the public in cases of alleged misconduct by practising pharmacists is both understandable and welcome in principle. If I may say so, that concern reflects the noble Baroness's overall determination to maintain and achieve high standards in healthcare. All those who have taken part in discussions and debates with her both inside and outside your Lordships' Chamber have long been aware of her concern.

I am sorry that I was not personally involved in the debates in the last Parliament on the Pharmacists (Fitness to Practise) Bill, but I have of course read your Lordships' deliberations, with great interest. I understand that the noble Baroness sees the Bill before us as an extension of those provisions.

The Government recognise, as does the Royal Pharmaceutical Society, that there is a need to be able to suspend a pharmacist immediately in circumstances of alleged misconduct. Our concern is that the Bill before the House today does not contain all the elements that are necessary to achieve that satisfactorily.

As your Lordships know, pharmacists play an important part in the front line of primary healthcare today. Safe and accurate dispensing is the cornerstone of the pharmacist's role. The increasing complexity and potency of modern medicines mean that it is even more important that high standards in pharmacies are upheld. Those factors make it all the more important that appropriate disciplinary procedures are in place which protect the public and also protect the rights of the pharmacist.

Your Lordships will of course recall the provisions of the Pharmacists (Fitness to Practise) Act, introduced by the noble Baroness, Lady Gardner of Parkes. The Royal Pharmaceutical Society of Great Britain considered then that ill health among its members which might threaten high standards of practice should be dealt with separately from matters of discipline which are dealt with by the society's statutory committee, as the noble Baroness explained when introducing the Bill.

The new Act gives the society, through a health committee, powers either to suspend or to impose a conditions of practice order on a pharmacist whose competence is impaired due to physical or mental ill health. There is provision under the Act to suspend a pharmacist immediately if the health committee considers that to be necessary for the protection of the public.

The noble Baroness, Lady Flather, intends that similar powers should be available to the statutory committee in disciplinary matters. This Bill proposes an amendment to the 1954 Pharmacy Act that would allow immediate suspension of a pharmacist. It does not, however, indicate what the effect of suspension is intended to be or what terms would govern a suspension.

The present powers of the statutory committee are related to inclusion on the Register of Pharmaceutical Chemists or removal from that register. What is now proposed by the noble Baroness suggests that what is intended is immediate removal from the register.

In our view there is a fundamental difference between the terms of the Bill before your Lordships and the earlier Pharmacists (Fitness to Practise) Act. This Bill does not provide for a satisfactory appeals mechanism to protect the pharmacist who is to be suspended from immediately being prevented from practising his profession.

Your Lordships may recall that the earlier Act includes provisions specifying the effect of suspension and interim suspension orders and makes provision that any period of immediate suspension pending appeal on health grounds is for a strictly defined and limited period of time. An immediate suspension order ceases to have effect after 12 weeks from the day on which the order is made; or, of course, if an appeal is heard earlier the decision of the health committee that the pharmacist should be suspended for a period of up to three years is then either confirmed or overturned. A pharmacist has 28 days within which to appeal against a decision of the health committee, so it is incumbent on the society to be able to make early arrangements for an appeal to be heard. The society understands that it must be able to do this in order to ensure the continued protection of the public, and in this way the pharmacist's interests are protected as well as those of the public.

The noble Baroness's Bill makes no similar provisions for those who might be suspended by the statutory committee. It does not state a date on which the suspension period ceases. This would mean that the pharmacist suspended in this way would be unable to practise until the normal appeal process against a decision of the statutory committee has been gone through. As the noble Baroness will know, under this procedure a pharmacist may wait for up to three months before he lodges an appeal. He must also wait for a slot for the case to be heard in the High Court. It is of course possible, but I am advised unlikely, that such a hearing could be expedited. It is more likely to take up to a year to be held.

In our view the balance of protecting the public and protecting the pharmacists' interests would not be satisfied as they are by the earlier Act. Indeed, it has been suggested that it is questionable that the proposals, as drafted, comply with Article 6 of the European Convention on Human Rights. With your Lordships' permission, I shall quote from the article: In the determination of his civil rights and obligations or of any criminal charge everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". However, as I said earlier, the Government recognise the need for amendment of the powers of the statutory committee and the noble Baroness's proposal to extend the powers of the committee is welcome in principle. I know that the society is also supportive of the proposal that the statutory committee should have additional powers. However, as I hope I have explained, we do not believe that the proposals of the Bill are adequate to achieve the limited provision with which it seeks to deal. We also accept the view of the pharmaceutical society that a number of other aspects of the provisions governing the powers of the statutory committee could also usefully be reviewed in a general way.

For example, Section 8 of the Pharmacy Act 1954 refers to, misconduct [which] …renders the …guilty person unfit to have his name on the register", and unless the statutory committee finds this degree of misconduct to have occurred, it has no sanction or powers. On the other hand, the disciplinary provisions for other health professionals, such as doctors, refer to "serious professional misconduct", and give the relevant disciplinary body jurisdiction to determine what penalty should be imposed including, but not limited to, removal from the professional register.

It is clear that the society needs to have powers to deal with conduct which is not acceptable professionally, particularly where it is motivated by commercial rather than professional interests. Although this conduct may well be serious, it will seldom be so grave as to render the responsible person totally unfit to practise his profession by being struck off the register.

We all understand that as the role of the pharmacy in healthcare develops the society is anxious to develop adequate mechanisms to enable the profession to set and maintain high standards and to ensure compliance with those standards. These are necessarily very broad issues which should be considered carefully. Over the coming months the society intends to discuss proposals for a comprehensive review of the disciplinary provisions, including the provisions in the Medicines Act which deal with bodies corporate which own pharmacies. It will wish to seek the views of the various interested parties both within the profession and outside it and then to discuss them with the Department of Health. It is at that stage that it may make proposals for changes to the jurisdiction or disciplinary powers of the statutory committee. We would then look carefully and sympathetically at any proposals for legislation that emerge.

In the light of the society's desire for a comprehensive review of the provisions relating to disciplinary matters and because we feel that the disciplinary proposals before us in the Bill are flawed for the reasons I have tried to give, I am afraid that the Government cannot support the Bill. I am sorry to disappoint the noble Baroness, whose concerns we appreciate, but we feel that her Bill only begins to address one of the changes which may need to be introduced. We think this may require more fundamental reappraisal. The Bill before us is an attempt at what one might describe as piecemeal reform. We feel, as does the Royal Society, that it is not really in the best interests of patients or of pharmacists.

6.15 p.m.

Baroness Flather

My Lords, the Minister has read a very interesting brief. I am sure that she has not had as much opportunity as I have had to familiarise herself with the subject. Therefore, I shall try not to bear any ill will towards her. I am not only disappointed. I am rather surprised by what I felt was something of a tautology that came out in her brief. Unfortunately, my pen ran out of ink part way through and I could not take as full a note as I should have wished of the enormously lengthy reasoning as to why pharmacists who are a danger to the public should not be removed from the register with immediate effect.

The noble Baroness referred to an independent tribunal and to human rights. What is the point of setting up a statutory committee? What is the statutory committee? Is it some kind of an arm of the Royal Pharmaceutical Society? Is it some kind of an arm of the pharmacy profession? I thought it was an independent tribunal. The chairman is certainly independent. I do not know about other members because they are appointed by the council. They are neither lay nor independent. But it is meant to look after the profession. It is meant to keep an eye on what is going on in the profession. It was set up by the Pharmacy Act 1954.

I told your Lordships of the example of the General Medical Council. It too had no right to remove a doctor from the register with immediate effect. We are not talking about removing every person who comes before the statutory committee. It is simply giving the discretion to a committee which has been appointed specifically to protect the public. If we had no committee, there would be no need for anything. Whatever happened would happen. However, the GMC received its powers in 1970 in piecemeal legislation because that became necessary for the protection of the public. No one can say that it is logical to have piecemeal legislation, but this matter is long, long overdue. Every other health care profession has this right vested in its disciplinary committee.

What else have I heard? The noble Baroness referred to appeals to the High Court. Such appeals do not take three months. That is the maximum period in which a person may lodge an appeal. He or she can lodge the appeal as soon as they leave the statutory committee building. We have heard that the process may take up to a year. It may well do. However, they have been found guilty. The case against them has been proved. Every other person who has a case against them proved may have to accept the penalty until the appeal. If you have to go to prison after the Crown Court, you will go to prison. Then you have an appeal and you may be let out. I am pleased to see the noble and learned Lord, Lord Archer, indicate his agreement. It is something to which we are all subject. If we are found guilty of an offence, we are punished for it. We can then appeal but we must wait until the appeal is heard. As I have said before, this happens only in cases where the statutory committee appointed by the Privy Council to oversee the profession feels that it is necessary. The whole of the statutory committee is behind this so-called piecemeal legislation.

If the appeal is successful that is no reason not to give the right to the statutory committee to remove someone from the register. I beg your Lordships' pardon. The Minister said that she wanted that clarified. It is not a removal from the register. It is called "immediate interim suspension", whatever that means. That is the exact term.

We heard something about a judicial review. All of us in this place have that right and it is our greatest protection in this country from any kind of administrative injustice. There will always be the right to judicial review. My noble friend Lady Cumberlege mentioned the case of Boots. It was collecting scripts and taking them to be filled and then returned. The Royal Pharmaceutical Society felt that that was misconduct by Boots but it lost the case as inevitably it would because it was not misconduct. My husband gave a minority judgment in that. He did not agree with the majority, all of whom were pharmacists. At one point the judge in his judgment said that he could do no better than to read from the chairman's statement.

All these are red herrings. There is absolutely no reason whatever why this matter cannot be dealt with immediately. If the department felt that there was some defect in the drafting of this very short Bill, I am sure that it could have taken a hand and carried out some improvement itself. But the department has not done so. It has taken no interest in this matter. If there is to be a review of the Pharmacy Act, according to the statement of the secretary and registrar of the Royal Pharmaceutical Society, it would take 18 months to two years. I believe that that figure is optimistic. With their huge programme of legislation, will the Government find time for a review of the Pharmacy Act? I believe that they will not.

I received a letter yesterday from Mr. Ferguson who is the registrar and secretary to the Royal Pharmaceutical Society. He states in his letter that there is no question of representations being made to the Minister opposing the Bill. That is supposed to be the pharmacists' position. That is the best information that I have. He further says that he can confirm that the society's council supports the principle of the statutory committee having the power of interim suspension in appropriate circumstances. Therefore, there is no question of the society speaking against the Bill which would secure that end. That is supposed to be the official position of the society. If it has made separate representations to the Minister, which do not tally with what I have just said, I cannot speak for it. But I am very surprised that such a respectable organisation as the Royal Pharmaceutical Society should speak in different ways to the Minister and myself.

The Minister made a point about the ill-health situation being dealt with separately. That was long overdue. I am surprised that that bit of piecemeal legislation was allowed to go through this House by the then government. The society did not object to it. If anything was piecemeal, that piece of legislation was. But it was allowed to go through.

What else can I say in support of this Bill except to suggest that the chairman of the statutory committee is deeply concerned about not having this particular power. As I have said before, and as all noble Lords know, 99.9 per cent. of pharmacists are above reproach and work to the great satisfaction of everyone. But there is that 0.1 per cent. who should not be dispensing for up to a year when they have been found guilty by the statutory committee and found to be seriously lacking in the qualities that a pharmacist should have to continue practising and dispensing normally. If your Lordships feel happy about that situation, I certainly do not. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

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