The Society

160th Annual General Meeting (May 16 2001)

New Code of Ethics adopted

The annual general meeting adopted the proposed new Code of Ethics for the profession (PJ, April 28, p590-96), subject only to minor amendment. The meeting rejected a proposal to delete a statement that, before accepting employment, pharmacists should disclose any factor that might affect their ability to provide services.

Presenting the proposed new code to the meeting, BILL DARLING, chairman of the Code of Ethics working party, reminded those present that at the 2000 AGM he had presented part of the revised code, namely Part 1, Part 2 and the standard for provision of services via the internet. He had said then that the Council needed further time to consider fully the outcome of consultation, and to take into account the impact of new legislation upon the code, in particular the Competition Act and the Data Protection Act. During the past 12 months much work had taken place to ensure as far as possible that the code before the meeting would not able to be challenged in the courts, in particular, by the Office of Fair Trading. Every word and every syllable had been examined to try to achieve that situation.

Effect of Competition Act

Perhaps the most important element of the scrutiny had been the Competition Act. The Society had been informed by leading counsel that pharmacy was not a profession exempt from Section 2 of the Act and that the code, constituting the agreed practice of the profession, fell fairly and squarely within the provision of the Act. The Society had also been told that anything that distorted or restricted competition would offend against the Act and that the Act did not permit a public interest defence.

As a consequence of all this, the working party had changed significantly the paragraphs relating to publicity, promotion and information, accepting that these were the major areas affected by the Competition Act. It had deleted certain paragraphs, such as one concerning money-off offers. It had retained other paragraphs, albeit with slight amendment, when it was felt that it could successfully be justified to the OFT that
it was for the profession to determine professional standards, accepting that those decisions, those standards could be subject to scrutiny under other legal procedures.

The document had been refined considerably, but the thrust had not changed. That thrust was to encourage pharmacists to use their professional judgement, and it empowered them to do just that. It recognised that pharmacists were independent health care professionals who were accountable and responsible for their own individual decisions, their own behaviour and their own competence.

During the consultation the same issues had been raised on many occasions. One was the “conscience clause”, which concerned a pharmacist's inability to provide any particular service because of religious belief or personal convictions. Employment legislation protected employees from being unfairly dismissed, but he believed that pharmacists should be “upfront” about what they could not or did not want to do. If a pharmacist did not feel able to perform a function required by an employer, it was for the pharmacist to take that decision, and this was an all embracing clause within the code.

Price promotion

Returning to the service specification on “publicity, promotion and information”, and in particular the final paragraph, which referred to the promotion of the prices at which a pharmacy sold medicines, Mr Darling said that, as a consequence of the Competition Act, the promotion of medicines by price could not be prohibited. What the profession could do on grounds of public safety was to prevent promotional methods that encouraged an individual to purchase a medicine that was not wanted or a medicine in a quantity that was professionally unacceptable.

The collapse of resale price maintenance meant that the footnote to that paragraph had to be deleted. Those words had been intended to reflect the legal situation that RPM was a contract between the manufacturer and the purchaser. Now that RPM had fallen, the difference between the Competition Act and RPM as set out in that footnote was no longer relevant.

Mr Darling then moved the adoption of the Code of Ethics and Standards, subject to the deletion of the footnote and the correction of one or two minor typographical errors.

Asked what powers the Society envisaged being able to exercise in relation to price promotion of medicines, Mr Darling said that it had been agreed at a brief Council meeting earlier that day that the Council's Law and Ethics Committee would hold a special meeting in June to look at the situation as it developed so that the specific promotions could be examined and to determine what attitude the Council would have to them.

The situation was a delicate and rapidly developing one, and it would be improper to make any immediate definitive statements. The new Council had to look at what happened and to have further talks with the Society's lawyers.

Mrs SUE SHARPE, Director of Professional Standards, said that there might be particular concern about the professional accountability of a superintendent pharmacist in the face of promotions run by, for example, one of the large grocers. The position would be that, in respect of anything undertaken within the registered pharmacy part of the grocery business, the superintendent would be professionally accountable. But in respect of any activity in the grocery part or the non-pharmacy part of the premises then the Society has absolutely no remit whatsoever.

Complementary therapies

Answering a point about the lack of any reference to efficacy in the service specification on complementary therapies and medicines, Professor BILL DAWSON, chairman of the Council's Science Committee, said that there was a wide range of opinion on efficacy of complementary therapies and there was no easy resolution in the short term. In the Society's discussions with the House of Lords Select Committee and the Medicines Control Agency there had been a strong desire to get some degree of control that could be provided quickly. It had therefore been decided to concentrate on safety and quality in the belief that efficacy could be covered at some future stage.

Asked why the service specification on extemporaneous preparation stated that a product should not be prepared extemporaneously if a licensed product was available, Mr DARLING said that this reflected MCA policy.

Conscience clause

PETER MUTTON (Inverness) said that the point had been made earlier in the day that the “conscience clause” [paragraph A.2(k) in Part 2 of the code] might contravene the European Convention on Human Rights (see p714). It would be regrettable to pass that clause now and then have the European court find in favour of a defendant who perhaps had failed to secure a job because of this situation. A comment had been made that it might be possible to adopt the code with the deletion of that paragraph.

Mrs SHARPE replied that the Society had satisfied itself that there was no authority under litigation under the Human Rights Act that would indicate any problems with any of the provisions of the code.

The VICE-PRESIDENT (Marshall Davies) said that if a prospective employer refused to employ an individual on religious grounds, he would be in breach of the Employment Protection Act and action could be taken against him.

CAROLINE FOLEY (Brighton) said that she represented 30 pharmacists around Britain who had asked her to speak on their behalf to oppose the conscience clause. Many had had to stay in their existing employment because, even without this new document, they felt under pressure. Another point was that the document had removed the grounds upon which they made their objection, which was upon the grounds of fertility, conception and termination of pregnancy. Those words were important because a huge controversy existed in the medical profession over when conception happened. Some considered that the “morning after pill” affected fertility but to others it effected a termination. Those words were important because they gave peace to the pharmacist, who could say, “Yes, this is a right that is given”. Without those words a pharmacist could be considered to be in breach of a fundamental duty and could be hauled up in front of the Statutory Committee and somehow have to find the books of his religion with which to argue the fact that he had a conscience and a right to it on these grounds. Ms Foley therefore proposed that the meeting should throw out the conscience clause and vote on the document without it.

Mrs SHARPE said that several people had written in with concerns about the provisions relating to conscience. The working party had been anxious to recognise and to respect individuals' moral views, whether based on religion or other morality, and had been concerned that those people should feel that they would not be required to provide a particular service. The working party felt that a pharmacist who had a conscience problem with a particular service should first examine and balance his conscience considerations with the rights of the patient to have access to treatment. If, having weighed his own conscience against the patient's rights and the patient's perceived interests, the pharmacist felt unable to proceed to make a supply of a medicine, then it was right that he or another member of staff should advise the individual concerned that they could not make a supply and direct them to an alternative.

But the working party had also recognised that a pharmacist might feel unable to provide a particular service in circumstances other than matters of conscience. These could include the pharmacist with a back problem who could not deliver oxygen, the pharmacist who felt he was no longer competent to provide extemporaneous dispensing services and the pharmacist who could not cope with addict dispensing. So the working party had been anxious not to confine the restriction to matters of conscience.

Having captured all those issues, the working party had addressed the issue of what a pharmacist should do at that point. One of the three key responsibilities set out in the parts of the code adopted in 2000 was the duty to behave with integrity and probity. The working party could not conceive that it would be right for a profession that valued honesty and integrity actually then to support any provision or any suggestion that would have justified a pharmacist in withholding relevant information from his employer. It was felt that a pharmacist with strong principles of conscience or of moral objection to providing a service would also have to have somebody who had a equal regard and an equal commitment to being honest and forthright and open.

Mr Davies had already pointed out that there were aspects of legislation that would, in certain circumstances, make the sort of discrimination that might be envisaged in conflict with other legislation. Existing employees, or potential employees, were protected in a number of ways. They were not comprehensive, but every professional person had to be prepared to stand up and be counted for their beliefs and that was what had persuaded the working party to recommend the provisions as they were now.

Ms Foley's proposal having been seconded, the PRESIDENT suggested putting it to the vote.

JOHN FERGUSON (Haywards Heath) pointed out that the amendment would leave the code without a conscience clause at all. He did not believe that that was what Ms Foley or anybody else wanted.

Mr DARLING said that removing the paragraph would leave no protection and no understanding for those pharmacists who did not, because of conscience, wish to undertake a particular service.

Ms FOLEY then proposed deleting only the first sentence of the paragraph, so that it read: “Pharmacists must ensure that where pharmacists' religious beliefs or personal convictions prevent them from providing medicines which control fertility, conception or termination of pregnancy they do not criticise the patient and they, or a member of staff, must advise the patient of alternative sources for the service requested.”

Mrs SHARPE said that the meeting could, technically, vote to remove the first sentence, but what it would do was to leave a whole raft of situations unaddressed.

Mr DARLING said that if it was the wish of the meeting that the first sentence went back for further consideration, then the Council could reconsider it and issue a policy after, say, the June Council meeting — a policy that would be operational as a Council Statement and would be put to next year's AGM for ratification.

The PRESIDENT then put to the vote the proposed amendment to remove of the first sentence of the paragraph. The amendment was lost.

Mr DARLING then moved the adoption of the document subject to the removal of the footnote. The motion was carried.

Self-selection of P medicines

Mr FERGUSON said that he knew from experience that it was sometimes necessary for the Council to amend the code during the year as a matter of urgency to prevent some unforeseen practice from developing. He asked for an assurance that it would not make any such amendment in relation to the requirement in Section 3(b) of Part 3 that pharmacy medicines should not be accessible to the public by self-selection.

He believed that no change to that policy could properly be described as requiring urgent action, but he knew that the Proprietary Association of Great Britain intended to open a debate on the question of self-selection of pharmacy medicines. Such a change would fundamentally affect the perception of the way pharmacists treated the medicines that were confined to them for distribution. The collapse of RPM only underlined that. One good thing about the advertising of “three for the price of two” by one chain of pharmacies was that it would surely convince the Medicines Control Agency that pack size restrictions achieved nothing in terms of safety.

Mr DARLING said that when the ethics working party met on April 2 it had before it a request for the removal of this particular clause, which would permit the self-selection of pharmacy medicines. The working party decided that it would be improper to make such a fundamental decision without appropriate consultation and therefore made no recommendation to the Council nor did it delete that particular paragraph from the code. His view then had been that it was such a fundamental change that the most appropriate course would be for consultation, a Council policy and then that policy to be debated at an AGM. However, in the light of the RPM decision, it was possible that the Council might find it necessary to take a decision before next year's AGM. If so, the membership and the organisations representing pharmacy should be totally involved in that decision.

The PRESIDENT said that the discussion was entering unchartered waters. The Society had to act in the light of current legislation and all the pressures that were on it. It would be a fundamental decision and it might be that the Council would end up having to make a decision sooner than an AGM next May. She gave an assurance that the matter would be dealt with appropriately.

Correction
Comments in this report attributed to Peter Mutton (Inverness) were not made by him.