Does the Sale of Goods Act 1979 (or equivalent) cover UK NHS prescriptions?

Question

In the UK the NHS provides free-of-charge health care, with a few exceptions e.g. a patient has to pay about £8 (as of writing 2017-09-12) per drug on prescription.

An NHS doctor prescribes a drug that is unsuitable for a particular patient (tablet form, for a patient that cannot swallow tablets), and the doctor knows this in advance. The patent discovers this when at home, but cannot return drug (for safety reasons).

The issue is rectified by a new drug being prescribed. However the patient is expected to pay a 2nd time.

If the Sale of Goods Act 1979 applied, then the patient could return the drug as not suitable for the particular purpose.

Does the Sale of Goods Act 1979 or some other statute, apply? Or is the NHS exempt?

Answer 1

There is, as far as I can see, no Crown exemption from the sale of goods acts (including the International Sale of Goods Conventions), but unfortunately for this patient the NHS has no liability either in logic or in law.

The doctor provided a written prescription, for which there is no charge, and which allows patients to buy certain drugs. The patient took the prescription to a chemist's, which (for money) provided the drug specified in it. Even if the patient had noticed that the prescription was for the wrong form of medicine, the pharmacist has no discretion to alter it; if the prescription specifies tablets, the patient can either buy the tablets or not buy them and take the prescription back to the doctor. In neither case has either the doctor or the chemist committed any conceivable offence regarding sale of goods.

(There might theoretically be a case for negligence, but it would never be worth either suing a doctor for an £8 prescription fee or reporting him to the authorities for writing a prescription for the right drug in the wrong form).

Answer 2

If the Sale of Goods Act applied, then the patient could return the drug as not suitable for the particular purpose.

Not obvious that this is true. The doctor who made the faulty prescription is probably different from the pharmacy that fills the prescription. The pharmacy did what it was told by the prescription and would have been at fault if it did something different. It isn't clear to me that the pharmacy selling the drug should be liable for the doctor's mistake.

Answer 3

Yes. The Consumer Rights Act (CRA) 2015 and Sale of Goods Act (SGA) 1979 both cover UK NHS prescriptions. The transaction between you and the pharmacy is a "consumer contract" covered by CRA 2015 s 61(1).

I quote from Janet O'Sullivan, O'Sullivan & Hilliard's Law of Contract (2020 9 ed), p 207. The 2022 10 ed shall be published in July 2022.

8.27 According to s 61 of the CRA, a ‘consumer contract’ is defined in s 61(1) as a ‘contract between a trader and a consumer’. In turn, ‘trader’ and ‘consumer’ are defined in s 2 of the CRA as follows:

(2) ‘Trader’ means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.

(3) ‘Consumer’ means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.

(4) A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual’s trade, business, craft or profession must prove it.

A prescription though, ISN'T a contract. A prescription is merely an authorisation — it authorizes a person, the pharmacy, to supply the medicine without committing an offence. See Part 12 of The Human Medicines Regulations 2012.

So the question will be what the terms of the sales contract are. Obviously, you tender a prescription to a pharmacy, for the purpose of being dispensed medications as (pre)scribed in your prescription — rightly or wrongly by your doctor. Thus one contractual term is the dispensation of the medications as specified in that prescription.

If the medications are dispensed correctly, then this dispensation would not breach the terms including those in the CRA 2015. Obviously if the medications are dispensed wrongly (eg providing the wrong dosage or the wrong format), then obviously you are entitled to the replacement prescription.

The issues here are suitability of the medication format, and medical negligence. The issue is whether the doctor who prescribed this medicine was negligent (e.g. prescribing a tablet form, when a patient can’t ingest tablets). If so, then you would claim damages from the prescribing doctor that would be the cost of acquiring the correct medicine, including the cost of the replacement prescription and compensation for an injury from the wrong medicine.

Answer 4

It's important to note that "fitness for purpose" would be judged by reference either to the purposes for which the goods are ordinarily used (by consumers in general), or for the purposes of which the pharmacist was specifically advised by the buyer.

For example, if the chemist supplies a horse pill too big for near anyone to swallow, then that is unfit. And if he is told that he needs to supply somebody who cannot swallow, and then supplies pills to swallow, then that is unfit.

But if the chemist is simply presented with a prescription, and fulfils it with good medicine accordingly, then he has not breached the law - he could not have guessed he was in this instance supplying somebody who could not swallow, unless he was told so.

As for the NHS doctor, the relationship is not contractual, so they would have to be judged by a standard of medical negligence.

Whether a single instance of a minor prescribing error, leading to £8 wasted pharmacy costs, would be regarded as "negligent" is doubtful in my mind.

If the loss of the £8 would cause real credible hardship, then perhaps explaining the situation, and asking for an ex-gratia payment from the surgery would be an approach.

But otherwise, I would say give the doctor a break, since they are doing an enormously difficult job, and their resources are often under assault from "efficiency savings" and "market reforms".

Answer 5

The £8 prescription charge is paid to the NHS. The NHS pays the pharmacy for the drugs, so the patient is not a party to the contract.

On this basis, I would guess that the Sale of Goods Act does not apply, but the Consumer Protection Act may well apply (which would be a claim against the manufacturer not the pharmacist).