Implications of European Court of Justice ruling
From Mr G. L. Stafford, MRPharmS
The Journal recently published a News item covering the European Court of Justice judgment on 19 May 2009 concerning ownership of pharmacies (PJ, 23 May, p604). The judgment seems to have passed by without comment from any quarter within the profession.
I consider it the most important justification I can remember being made for the existence of pharmacists in protecting public health — and this judgment has come from the highest court in Europe. I consider it a judgment so unexpected and fulsome in its support of pharmacists that I think we should mark its publication by making 19 May (2009) “Pharmacy Day”.
Why do I think it is so important? First, the court concluded that the health of the citizen was a more important consideration than both freedom of establishment and the free movement of capital.
Here is a quote from the press release: “In its judgments delivered today, the Court states that excluding the possibility for non-pharmacists to operate pharmacies or to acquire stakes in companies or firms operating pharmacies constitutes a restriction on the freedom of establishment and the free movement of capital.
“That restriction can nevertheless be justified by the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality.”
Secondly, the court concluded that medicines are not ordinary goods of commerce. The press release states: “The court draws attention to the very particular nature of medicinal products, whose therapeutic effects distinguish them substantially from other goods.”
Thirdly, the main part of the judgment states that any member state can decide for the reasons stated above that it is reasonable to restrict the ownership of pharmacies to pharmacists alone: “A member state may therefore take the view, in the exercise of its discretion, that the operation of a pharmacy by a non-pharmacist may represent a risk to public health, in particular to the reliability and quality of the supply of medicinal products at retail level.”
It goes on to say: “Having regard to the discretion which it is allowed, a member state may take the view that there is a risk that less restrictive rules designed to ensure the professional independence of pharmacists, such as a system of controls and penalties, would not be observed in practice, given that the interest of a non-pharmacist in making a profit would not be tempered in a manner equivalent to that of self-employed [ie, owner] pharmacists and that the fact that pharmacists, when employees, work under an operator [which] could make it difficult for them to oppose instructions given by him.”
Furthermore, in the Italian case before the court the judgment went on specifically to exclude the involvement of pharmaceutical wholesalers in the running of Italian municipal pharmacies for the same reasons.
So what are the implications for us in the UK? How many pharmacists in community practice today are under the direction of non-pharmacists and wholesalers, the very thing the ECJ warns against if the public is to be protected?
Will the European Commission now change its policy and pursue governments that are not fully protecting their citizens? Will the Department of Health reverse legislation that allows non-pharmacists to control large sections of our professional activity?
Where does our professional body stand with regard to this judgment? Is it with the court and pharmacists or with the non-pharmacist owners and wholesalers? I for one would like to know.
Graeme Stafford
Morecambe, Lancashire
Seconded
I thought exactly the same when I read the article a couple of weeks ago in the journal.
I would love for the Department of Health to reverse the current legislation on the basis of this ruling.
Finally we would be able to gain professional control again!
I feel a petition coming on! - Graeme fancy doing another one?
Petitions
I am thinking of starting of a couple of new petitions.
We need to halt the implementation of the Responsible Pharmacist regulations before 1st October. Let's see if the Society responds to Mark Koziol's call on that one first. If not then maybe I'll start a concerted campaign.
I also want to see if RSPGB, DOH and European Commission issue position statements regarding the ECJ judgment before I make any more moves in that direction.
Many thanks for your support. Encourage as many members of the Society to write in to the PJ or by posting here, supporting my call for some answers.
So what is the position of
So what is the position of the RPSGB on this?
Does the society support pharmacy ownership by pharmacists or does it favour ownership by billionaires and the stockmarket?
I would have thought this a simple question - may we have an answer?
no brainer
For me it is simple. If a non-pharmacist/supermarket/cartel owns a pharmacy contract, there is only one vacancy for a pharmacist (especially now that 2nd and 3rd pharmacists have been replaced by ACTs). If a pharmacist owns a pharmacy, there are two vacancies. The pharmacist owner(s) merely creams off a proportion of profit. This would be perfect for post-retirement age locums, or even better, consortia of hospital pharmacists who are paid a pittance in relation to the £20,000 and rising debt burden of MPharm. This could solve the problem of hospital pharmacist recruitment!!!!!!!
Will pharmacists please wake up and smell the coffee.
Never been a clearer judgment
From Mrs L. K. Gilpin, MRPharmS
The judgment of the European Court of Justice about the ownership of pharmacies (PJ, 23 May 2009, p604) passed me by (as I suspect it would have with many pharmacists), so I am grateful to Graeme Stafford (PJ, 13 June 2009, p701) for bringing it to my attention. His letter gave me a new way of looking at recent issues in pharmacy.
To quote from that ruling: “The operation of a pharmacy by a non-pharmacist may represent a risk to public health”, we can now view current issues in pharmacy with this in mind:
Looking to the future and the scenario of the concept of leaving pharmacies to run without a pharmacist being present (ie, remote supervision), pharmacists know that public safety is best protected when a pharmacist is in a position to intervene as needed.
If we need to leave the pharmacy, then let there be a second pharmacist in place. It may not suit the accounts departments of large businesses, but it is safer than leaving the public with non-pharmacists only.
As the European Court of Justice says: “Unlike pharmacists, non-pharmacists by definition lack training, experience and responsibility equivalent to those of pharmacists. Accordingly, they do not provide the same safeguards as pharmacists.”
There has never been a clearer judgment. Every decision and every consultation in the future must be weighed against this judgment.
Where it can be seen that the over-riding advantage is to the non-pharmacist owners, such changes must be resisted in line with the European Court of Justice’s desire to reduce the risk to public health.
Lindsey Gilpin
Locum Pharmacist
Member of the English Pharmacy Board
Not surprised at lack of comment
From Mr D. R. MacArthur, MRPharmS
Graeme Stafford (PJ, 13 June 2009, p701) is right to praise the recent European Court of Justice judgment on pharmacy ownership, but I do not share his surprise at the lack of comment on it. Last year, I thought the subject was of sufficient importance to publish a major report on the risks of pharmacy liberalisation (www.justpharmareports.com), but The Journal did not cover it.
The fact is that non-pharmacists are not allowed to have a majority ownership stake in community pharmacies in 11 of the 27 EU member states (Austria, Cyprus, Denmark, Finland, France, Germany, Greece, Italy, Luxembourg, Slovenia and Spain), and this effectively prevents the emergence of company-owned multiple groups.
Whether this is a good or bad thing is a matter for debate. But, maybe, the issues that seem to preoccupy the profession in the UK — the dominance of locums, stress in the workplace, dispensing errors — could be different today if our Government and professional body did what their opposite numbers in Germany and Italy have done: vigorously defended the 400-year old principle of pharmacy ownership by pharmacists.
Ironically, one of the main points made by the European Commission in its unsuccessful attack on this principle was that pharmacies had pharmacists in physical attendance at all times and it, therefore, did not matter whether they were owners or employees.
There are many things that can be blamed on the EU, but pharmacy multiples and the concept of the “responsible pharmacist” are not among those things.
Donald Macarthur
Global Pharmaceutical Business Analyst
Haywards Heath, West Sussex
The debate is now over.
Mr MacArthur says "Whether this is a good or bad thing is a matter for debate." I am afraid I have to disgree with him on this. Since we have the ECJ judgment surley it is no longer something we need to debate; the ECJ has settled the debate for us. The new subject for debate is how will the European Commission proceed since it clearly must now reverse its former position? Will it pursue the UK goverment in the same way it pursued the Italian goverment before the judgment? Perhaps he could write a new report to inform us of what he thinks the future holds now the judgment has been delivered.
And what will the RPSGB do, now this judgment has been delivered? Mrs Gilpin puts it very succinctly when she states "There has never been a clearer judgment. Every decision and every consultation in the future must be weighed against this judgment." It is so well put a rather wish I'd said it myself.
Patient safety first
Where have I heard the phrase patient safety first.
Surely the society which seems to quite rightly quote the above statement at all available points should be agreeing with the ECJ judgment and press all interested parties e.g. DoH for a reversal of legislation.
Safeguards against exploitation
From Mr J. R. Martin, MRPharmS
I found Graeme Stafford’s letter about the implications of the European Court of Justice ruling interesting. Perhaps the judge has visited a pharmacy in the UK because he describes parts of it so well.
As a locum, I have experienced many of the commercial pressures he suggests that may occur and, although not all independents are perfect, the culture at the larger multiples I have worked for often feels like it is focused on profits ahead of patients.
I would be interested to hear about the safeguards against non-pharmacist exploitation of pharmacy that the Department of Health currently uses in an attempt to ward off the possible dangers to the public mentioned, and why those safeguards appear to be failing currently (eg, medicines use review targets pressure leading to poor quality MURs, the constant question of proper rest breaks and no explicit protection for whistle-blowers). At the same time, the judgment (in what I understand is from the highest court in Europe) that medicines are not ordinary items of commerce should surely cause the Office of Fair Trading to revisit its resale price maintenance decision.
Jonathan Martin Llanelli, DyfedPharmacy ownership scheme
From Mr C. O. Agomo, MRPharmS
It is interesting to read about the Boots pharmacy-ownership arrangement in Sweden (PJ, 24/31 July 2010, p108), in which Swedish pharmacists are allowed to own a pharmacy while Boots keeps 51 per cent of the pharmacy shares.
Although Boots has no plans to implement this arrangement in Britain, this is what I have been arguing for through franchising arrangements (PJ, 3 May 2008, p545), particularly since it has been noted that pharmacy ownership is the top ambition among pharmacy students (PJ, 30 September 2006, p407).
British pharmacy owners could set this ownership example by inviting pharmacists to buy their shares gradually, as we see frequently in various partnership arrangements (eg, GP, accounting, legal partnerships, etc). The franchise arrangement could go a long way to motivate and inspire pharmacists.
However, for this type of ownership arrangement to happen in Britain, we will need the support of the new professional body, other pharmacy bodies and all pharmacists — through their membership and support of the new professional body after separation in September.
Chijioke Agomo
Community Pharmacist
London