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Mr. Andrew Turner: Will the hon. Lady explain why she would not get involved in such a dispute? Would there not be such a dispute?
Sandra Gidley: There may be a dispute. I am referring to people with far more legal expertise than I. Perhaps the hon. Gentleman would like to write to Sir Richard Buxton about it.
Mr. Andrew Turner: The hon. Lady is reading from a script. I assume she has something to say that I did not know, but she seems not to know what made me intervene.
Sandra Gidley: I am not quite sure what point the hon. Gentleman is making. Perhaps he would like to clarify, because I am not sure what he expects me to address.
Mr. Andrew Turner: The hon. Lady will say that there were reasons, but she will not explain them, and I wonder what the reasons are.
Sandra Gidley: We are not getting anywhere with such interventions. I am totally confused by what the hon. Gentleman is trying to extract from me. I think he is trying to make mischief. I am not sure that he is aware of what point he wants to make, so I shall move on, if that is okay with the Committee. I have almost finished.
This is a measure that the tobacco industry fears more than anything, because if we introduce something similar in this country and it is a success, it will be emulated around the world. Even if products are put under the counter, the plain packaging amendment means that there is no pack appeal. All the efforts of the tobacco manufacturers have been in trying to promote smoking—and the packages themselves—as a sexy product. The aim of that pack design has one purpose: to increase sales. That has the knock-on effect of increasing smoking.
People who are trying to give up often say that seeing a pack of their favourite brand can act as a real trigger to that yearning. That may be lessened by a plain packaging amendment where those triggers would not be so strong.
3.45 pm
Gillian Merron: I am sympathetic to the points that the hon. Lady made. The Government certainly do believe that more needs to be done to develop our understanding of how the packaging of tobacco products influences smoking by both adults who seek to quit and young people, and we will keep tobacco packaging under close review.
In my brief remarks, I should like to focus on the issue of evidence. There is some evidence that branding on cigarette packs may increase brand awareness among young people but it is not conclusive. It is also difficult to separate the impact of large, brightly lit tobacco displays from that of brand packaging. Both can convey, incorrectly, that smoking is normal, popular and attractive. While there is also evidence to suggest that branding on packs may mislead customers about the relative safety of different tobacco products, that too is very limited. No studies have been undertaken to show that plain packaging of tobacco would cut smoking uptake among young people or enable those who want to quit to do so. Given the impact that plain packaging would have on intellectual property rights, we would undoubtedly need strong and convincing evidence of the benefits to health, as well as its workability, before this could be promoted and accepted at an international level—especially as no country in the world has introduced plain packaging.
While we consider it premature at this stage to take these powers, we are committed to developing the evidence that is necessary to see whether this policy could change behaviour and protect young people from the tobacco industry’s marketing and zeal. The Government policy will develop further and the necessary changes will be made if and when appropriate. I hope that, in light of the commitment I have given on the Government’s behalf—to develop the evidence on plain packaging and keep the issue of tobacco packaging under review—the hon. Lady will feel able not to press new clause 10.
Sandra Gidley: That was quite a brief reply. There was not much to get my teeth into. It occurs to me that somebody has to be the first and if we all sit around waiting for somebody else to do it, we will never get anywhere.
The Minister made an interesting point when she said that it is difficult to separate the impact of large, brightly lit displays from the impact of pack design. By implication, the Minister seemed to be admitting that the displays are part of the problem. Obviously, it would be useful if there were an all-party consensus with regard to measures the Government will take. On the Opposition Benches, we have raised concerns about a complete under-the-counter supply of tobacco products. Is there not a case for a compromise that further restricts the way that products can be displayed and addresses some of those concerns, but also addresses the concerns of businesses, such as small newsagents, who fear a rapid overnight change? They do not fear the changes in the longer term; they are quite happy to see the sales die out then, but will find it hard to cope with the sudden change.
Gillian Merron: The hon. Lady has raised the point, so perhaps I might give an assurance that it will be a number of years before smaller shops have to comply. Bigger shops will have to comply first, and we are working very closely with the representative organisations to set minds at rest. I also wrote recently to all Members of Parliament with all this information, and am happy to provide further information.
Sandra Gidley: I thank the Minister, but in the short term is there there not a case for putting an end to some of the flashy displays that act as a promotion device in themselves? I shall withdraw the proposed new clause now and reflect on what might be a different approach on Report, but there is an interest in the House in discussing as many ways as possible of tackling this problem. We may disagree on some of the fine detail, but most people are committed to reducing smoking and, ultimately, to saving lives. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.

New Clause 11

Decriminalisation of pharmaceutical errors
‘(1) The Medicines Act 1968 is amended as follows.
(2) In section 67 (Offences under part III) after “sections 52, 58, 63;” leave out “64”.
(3) In section 122 (Warranty as defence) in subsection (2) after “section 63(b)”, leave out “sections 64 and” and insert “section”.’.—(Mr. Stephen O'Brien.)
Brought up, and read the First time.
Mr. Stephen O'Brien: I beg to move, That the clause be read a Second time.
The new clause proposes to decriminalise pharmaceutical errors, so that single dispensing mistakes are treated in the same way as errors in other medical professions. It is grossly disproportionate that errors committed by pharmacists are automatically deemed criminal offences, when those of doctors and other medical professionals are not.
My reasons for moving this clause are twofold. First, the criminalisation of pharmaceutical errors stems from antiquated legislation that bears little relevance to modern pharmaceutical practices. The Medicines Act 1968 has not been adjusted to accommodate the progress made in pharmaceutical services over the past 40 or so years. Secondly, the legislation fits rather uncomfortably with the Government’s intention to expand the role of the pharmacist to include enhanced services such as smoking cessation clinics. If pharmacists are to take on increased responsibilities that extend their contact with patients, they should be entitled to the same safeguards as the medical profession.
I am sure that the Minister will be well aware of the history and background to all this—the representations to the Royal Pharmaceutical Society, in particular in the case of Elizabeth Lee who, despite doing all the right things in trying to atone for her mistake, none the less ended up with a prison sentence. Most dispensing will take place where humans have to make the final decisions about the counting and handing out of medications, so human error will be a factor.
Equally, the Minister will be aware that early-day motion 1561 has been tabled and has attracted a number of signatures. Therefore, in the context of the positive role of pharmacists, I hope that the Minister will be able to look favourably on this proposed clause. I think the Government are already signalling that they want to move in this direction, and we have long had the Medicines and Healthcare products Regulatory Agency. While the Government are consolidating and reviewing the legislation, this clause—with these positive signs of potential change—gives the Minister an opportunity to take prompt action. I hope that he will therefore support it.
Sandra Gidley: I need to declare an interest, being a pharmacist by profession. This proposed new clause is well meant, and I do not envy the Minister having this issue on his desk. It is useful that so many Members have signed EDM 1561, showing general support for this. Elizabeth Lee now has a suspended sentence; she did not go to jail. She made a single error; the problem was not so much that it was catastrophic but, more fundamentally, that having discovered that she had made an error, she got in touch with the patient and found that they had been taken to hospital.
The court case found that there was absolutely no interrelationship between the dispensing error and the patient’s ultimate death. Nevertheless, due to existing legislation, the judge felt duty-bound to give the woman a suspended sentence. Not to put too fine a point on it, Elizabeth Lee has withdrawn from the pharmaceutical register and will never practise as a pharmacist again. Her career is in ruins.
The problem with the case of Elizabeth Lee is that it has made every pharmacist frightened of admitting to an error, so we stand to lose such learning experiences. There may be occasions in future when products become mixed up. People in such situations are only human. If the current anomaly is allowed to continue, we will go back a stage, because people will not be open and honest. That is ultimately a bigger danger to the patient than the potential consequences of amending the legislation, despite the concerns in some quarters about doing so.
Mr. Mike O'Brien: There is a problem, but the clause is not the place to resolve it. The Government recognise the concerns that the provision in the Medicines Act 1968 could lead to the criminal prosecution of pharmacists who make a single error in dispensing medicine to a patient, and I know that the issue has caused concerns to pharmacy professional bodies.
There are, however, circumstances in which sanctions should be available when the requirement to sell only medicines that are
“of the nature or quality demanded by the purchaser”
is seriously and knowingly contravened. The sanction may, for example, be used to protect against the sale of medicines to the public that are clearly counterfeit or have been adulterated. We must ensure that the Act provides sufficient enforcement powers and sanctions to deal with such serious risks to public health, so I cannot accept the new clause.
However, some change to the law is necessary to ensure that cases of genuine clinical error, such as dispensing the wrong medicine without a degree of culpability, are dealt with proportionately. A full review of the Medicines Act 1968 is already under way by the Medicines and Healthcare products Regulatory Agency, the Department of Health agency responsible for medicines regulation. The review will include consideration of possible changes to the law to clarify the issue. The MHRA is working closely with the Royal Pharmaceutical Society and other stakeholders to ensure that the law provides the necessary safeguards for the public while being proportionate in dealing with instances of clinical error.
The chief pharmacist appeared before the all-party pharmacy group on 16 June to discuss that very issue, as did the presidents of the Royal Pharmaceutical Society, the Pharmacists’ Defence Association and the National Pharmacy Association. They all agreed that a detailed examination of the legislation was needed, coupled with an exploration with the Crown Prosecution Service whether guidance could be issued in the interim on how to proceed with potential cases. Indeed, the president of the Royal Pharmaceutical Society said that
“we should not rush to replace poor regulation with on-the-hoof regulation”.
The review of the Medicines Act 1968 provides the opportunity to work with the full range of stakeholders affected by the provision and to create a legislative framework that is comprehensive, comprehensible and fit for current purpose.
Mr. Stephen O'Brien: I am grateful to the Minister for making it absolutely clear that a change in the law is needed. I take seriously the view that moving from poor legislation to on-the-hoof legislation could carry more risk. I am sure that the fact that he has made that commitment will be of some comfort to pharmaceutical professionals as well as those who represent them and those who signed early-day motion 1561. I would simply urge the Minister to proceed with speed in the area. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.

New Clause 12

Nicotine replacement therapy
‘The Secretary of State shall before 21 July 2009 set out guidance for consultation with appropriate stakeholders to provide greater access to nicotine replacement therapy for members of the public.’.—(Mike Penning.)
Brought up, and read the First time.
4 pm
Mike Penning: I beg to move, That the clause be read a Second time.
It has been a pleasure to be in Committee with you, Mr. Key, since Mr. Speaker left. New clause 12 is self-explanatory. It is a probing amendment that we do not intend to press to a vote. It seeks to push the Government to have a smoking cessation strategy. The new Minister said they will come forward with that later in the year, and nicotine replacement is a very important part of that. A lot of nicotine replacement is on prescription now, and I want to ensure that much of that is generic, so that the taxpayer gets value for money. I also want manufacturers to address nicotine addiction with the strength of the replacement. All too often I hear of people on nicotine replacement having, it seems, to chew gum all day to get anywhere near the level of nicotine addiction that they have from their smoking habit.
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