Pharmacies usually have 40 core opening hours unless they are 100 hour pharmacies that have opened under the relevant exemption contained in the now superseded National Health Services (Pharmaceutical Services) Regulations 2005. A pharmacy’s core hours are those hours when the pharmacy is required, by NHS England, to be open to provide pharmaceutical services. Any additional hours, when the pharmacy is providing pharmaceutical services over and above its core hours, are known as its “supplementary hours”.
Jamie Gill, a solicitor in the Ansons pharmacy law team outlines the difference between core hours and supplementary hours, and the differences in how any changes to these hours can be made.
There may be a number of reasons why a pharmacy might want to change its opening hours and these are generally covered by one of three processes:
Core opening hours cannot be amended without the consent of NHS England. To amend your core opening hours you must submit an application to NHS England, providing as much factual information as possible for the reasons for the request.
Generally, the reason will have to be because of a change in the needs of patients in the area and a prime example of why this might happen is where one or more local surgeries change their opening hours. This might necessitate a change in pharmacy opening hours to ensure pharmaceutical services are available at appropriate times.
Any application to NHS England should be considered within 60 days and any agreed changes can be implemented 30 days later.
It must be noted that where core contracted hours are amended, pharmacies are still required to provide the same number of core hours overall during each week. It should also be noted that a pharmacy’s supplementary hours may be converted into core hours as part of the amendment process.
Until a change is granted the pharmacy should maintain its previously agreed core opening hours, and if NHS England refuses the application, then the contractor may appeal the decision.
It is more straightforward for pharmacies to change their supplementary hours. Not less than 90 days’ notice must be given to the pharmacy’s NHS local area team of such a change. However, the NHS local area team has discretion to allow less than 90 days’ notice. This may be the case where, for example, a local GP surgery has extended its opening hours and the NHS local area team wants to ensure that pharmaceutical services remain available at such times without any unwanted delay.
The NHS local area team cannot refuse such a change provided the required notice is given by the pharmacy.
There are a number of reasons why a pharmacy may want to suspend its contracted services but the most common are:
The regulations contain provisions whereby a pharmacist can suspend its contracted services and not breach their contractual obligations.
It is possible to agree a temporary suspension of services with the NHS local area team for a certain period of time. Under the regulations a contractor will need to apply to the team and provide at least three months’ notice of any planned suspension of its services. This would be appropriate where, for example, there is a minor relocation or a pharmacy has plans to refurbish or undertake necessary planned maintenance on its premises.
It should be noted that there is no obligation on the NHS local area team to grant any such application.
It may be necessary to suspend your services for a short period of time in the case of an emergency, and the regulations state that the reason must be “beyond the control of the pharmacy”. Instances may include acts of God, such as very severe weather causing damage to the premises or making access dangerous or impossible, or even an accident or illness befalling the pharmacist in charge, preventing them from carrying out their responsibilities. In these circumstances will you be in breach and what must you do?
A pharmacy will not be in breach of its contractual obligations provided:
It should also be noted that there is no obligation to make up the hours in such circumstances.
Contractors should be aware that NHS local area teams will look for any patterns of suspension of services and should they feel there appears to be a pattern of reoccurrence, they will contact the contractor in the first instance for their comments and will take any further action they deem appropriate in the circumstances.
Contractors may want to consider some of the following points when suspending any pharmaceutical services or making any changes to opening hours.
All businesses should have a suitable business continuity plan or procedures in place to deal with unforeseen closures that will ensure an effective supply of services for their patients in the area. As part of this plan, contractors may find it useful to discuss and arrange with other local service providers a mutual arrangement that can be put in place quickly to deal with any such unforeseen closures.
Contractors should always follow the correct procedures when considering changes to their opening hours or following emergencies or planned closures. If contractors are in breach of their contractual obligations in relation to opening hours then it is possible for the NHS local area team to issue breach notices and even consider financial withholdings.
For some 100 hour or over 40 hour pharmacies there is a condition of their inclusion in the pharmaceutical list which means that the pharmacy could be removed from the list. In particular, this could particularly be the case for serious or persistent breaches. Of course, appeals against any adverse decisions can be made to the Family Health Services Appeals Unit of the NHS Litigation Authority.
The Ansons pharmacy team is a supplier partner in the National Pharmacy Association’s supplier partner scheme. The Ansons pharmacy team consists of experienced specialist pharmacy solicitors including a number of commercial property and corporate lawyers who are able to guide you through the ins and outs of buying or selling a pharmacy. This includes assistance from the initial due diligence, to drafting and negotiating the sale and purchase agreement on your behalf and then on to completion and post-completion tasks.
For further information, please contact Jamie Gill on 01543 431 185 or email email@example.com.