Background

Automated prescription collection lockers can be found at many pharmacies, allowing patients to collect prescriptions at a time convenient to them, day or night. But do these collection lockers require to be situated at a certain pharmacy premises, or can they be elsewhere? This was the question before the Outer House of the Court of Session in recent decision of Petition of Community Pharmacy Scotland for Judicial Review [2023] CSOH 65.

In terms of the NHS (Pharmaceutical Services) (Scotland) Regulations 2009 (the “Regulations”), Health Boards must keep a record of pharmacists and the addresses of the premises from which they will undertake pharmaceutical services. This is known as the “Pharmaceutical List”.

Community Pharmacy Scotland (“CPS”) which represents community pharmacists throughout Scotland, objected to the use of collection lockers which are situated at premises not on the Pharmaceutical List. The Health Boards of Fife and Lothian, and Dears Pharmacy, disagreed with CPS, maintaining that such use of collection lockers is perfectly lawful, provided the prescriptions were dispensed from a pharmacy.

The Court required to explore (i) whether or not the Regulations mean that collection lockers must be situated at certain premises, and (ii) whether the Scottish Parliament had the power to make the Regulations in the first place. 

Legal Arguments

It was not in dispute that the Regulations require that “pharmaceutical services” are to be provided from a pharmacy on the Pharmaceutical List. However, a further part of the Regulations also allows for pharmaceutical services to be provided elsewhere as part of a “collection and delivery arrangement”. A key question was whether collection lockers could form such an arrangement.

CPS argued that prescription collection lockers did not form such an arrangement.  They also argued that the use of collection lockers could mean that the commercial viability of pharmacies would be called into question.  

On the other hand, the Health Boards and Dears Pharmacy argued that the clear aim of the Regulations is to permit collection and delivery arrangements to take place on unlisted premises. The reason for this is to benefit patients and to improve access to pharmaceutical services. If CPS were correct, then this would defeat the purpose of the Regulations and would result in collection and delivery arrangements operating differently in Scotland than in the rest of the United Kingdom. It would also render delivery of prescription medicine to a patient’s home, a practice which has been ongoing for many years, unlawful.

It was also argued by the Health Boards and Dears Pharmacy that, if CPS were correct in their argument, the Regulations would be unlawful. This is because it is unlawful for the Scottish Parliament to make any legislation which is a “reserved matter” – i.e. a matter which can only be dealt with by the UK Parliament. One such matter is the subject matter of the Medicines Act 1968. The Health Boards and Dears Pharmacy argued that it was the 1968 Act which regulated the places at which medicinal products were supplied.

It was argued that, if the Regulations did require collection lockers to be contained in listed premises, this would mean that the Regulations are beyond the legislative competence of the Scottish Ministers and “not law”.

Decision

Lord Harrower confirmed that the use of collection lockers, in the manner suggested, was lawful. He noted that the intention of the Regulations is to ensure the supply of pharmaceutical services to the public from listed premises, rather than to hinder them.

Two matters were emphasised. Firstly, Lord Harrower’s understanding of the Regulations would not allow a pharmacy contractor to deliver pharmaceutical services solely through prescription lockers. The Regulations allow the lockers to be used following the definition of a collection and delivery arrangement, on the condition that the pharmacy contractor provides pharmaceutical services from premises named in the Pharmaceutical List.

Secondly, although the definition of a “collection and delivery arrangement” lets prescription forms be taken to premises “other than a registered pharmacy”, which can be closed to the public, it still necessitates the preparation and dispensing of medicine at a registered pharmacy.

Therefore, it is perfectly legal to have collection lockers outwith premises on the Pharmaceutical List, so long as the prescriptions are prepared and dispensed at the pharmacy itself.

As a result of Lord Harrower’s interpretation of the 2009 Regulations, he considered these to be lawful and within the power of the Scottish Parliament.

Significance of the Decision

This case provides clarity on the lawfulness of where collection lockers can be used. This will no doubt benefit patients across Scotland by allowing pharmacies the freedom to use prescription collection lockers in locations where patients can safely gain access to their prescription without necessarily having to travel to a pharmacy premises.