|Pharmacy Regulations 2013|
NHS England is responsible for administering opening hours for pharmacies, which is handled locally by its regional offices.
A pharmacy normally has 40 core contractual hours (or 100 for those that have opened under the former exemption from the control of entry test), which cannot be amended without the consent of NHS England, together with supplementary hours, which are all the additional opening hours, and which can be amended by the pharmacy subject to giving three months notice (or less if NHS England consents). A pharmacy may also have more than 40 core hours where it has made an application based on that higher number, and NHS England has agreed that application, and in this case, the pharmacy cannot amend these hours without the consent of NHS England.
There is also a provision which allows a pharmacy to apply to open for less than 40 hours, but if NHS England does grant such an application, it can specify which opening hours the pharmacy must open.
The terms of service require every pharmacy to send a return to NHS England on request, specifying the opening hours (both core contractual and supplementary hours). This should not be needed as a matter of routine however, a regional office may use this power to request a return, if there is any doubt about the actual opening hours.
In addition to the above regular opening hours, NHS England can commission an out of hours Enhanced service. This service may operate under arrangements similar to the former rota arrangements throughout the year, or could be limited for example to public holidays. For many pharmacies, participation in such arrangements is voluntary, but those pharmacies which opened under the exemptions for 100 hour pharmacies, those in approved large retail areas, and those in one stop primary care centres may have been required by the terms of their application, to provide any Advanced or Enhanced Services that were agreed during the course of the application where NHS England commissions the service.
As a fall back position, if the needs of people in the area are not met, and no pharmacies are able or willing to participate in an out of hours Enhanced service, NHS England has the power to issue a direction requiring the pharmacy to open, but must if doing so ensure the pharmacy receives reasonable remuneration. The process of issuing such a direction begins with discussions with the LPC and the affected contractors must be contacted by NHS England and the proposals outlined so that the contractor can make representations. There are rights of appeal against NHS England decisions to issue such directions, and the direction would be valid only if the statutory procedure is followed. If you need advice on such a direction, consult your LPC (which NHS England is required to consult before issuing such directions).
Click on a heading below for more information.
Changes to core contractual hours
Pharmacies wishing to amend the distribution of their core contractual hours must apply to NHS England.
NHS England has published template forms (see Chapter 18, Annex 2).
NHS England is required by the Terms of Service to consider and determine applications within 60 days, and changes, where approved, can be implemented not earlier than 30 days after the approval has been received. Because requests to amend core contractual hours are ‘applications’ NHS England could refuse, so an unsuccessful application may result in an appeal.
It is vital to the success of an application to set out sufficient information about any changes to the needs of people who may use the pharmacy. Changes to the local surgery hours, opening or closures of neighbouring pharmacies, are factors that may also be taken into account, but to maximise the chance of success in the application, provide as much factual information as possible about changes to the needs of the patients – patient surveys, records of levels of use (prescriptions and requests for advice / OTC medicines sales) may help demonstrate that the profile of demand has changed.
Where core contractual hours are amended, there is still the requirement to open for the same required number of core contractual hours during the week – so applying to close on one day, or to close early will necessitate an increase in core hours on another day that week. If the pharmacy normally opens for more than its core hours (i.e. by having supplementary hours) then the change to the distribution of the core contractual hours might be effected by changing some of the supplementary hours to core contractual hours.
The appeals process can be lengthy, so additional time should be allowed, in case this is needed. The Family Health Services Appeal Unit, (FHSAU) a part of the National Health Service Litigation Authority (NHSLA) could grant or refuse the application and it is important to note that until NHS England (or on appeal the FHSAU) has granted an application, all pharmacies are required by the Terms of Service to open for their previously stated core contractual hours. If a 100 hours pharmacy fails without good cause to open for their stated 100 hours, every week, NHS England may be required to remove them from the Pharmaceutical List.
Changes to supplementary hours
Pharmacies wishing to amend any supplementary hours that they open additional to the core contractual hours must notify NHS England, giving at least three months notice of the intended change. NHS England may consent to a shorter period of notice – but because that consent may not be forthcoming, try to ensure that plans are made sufficiently in advance. The discretion to permit less than three months notice for changes to supplementary hours is most likely to be exercised where the pharmacy is seeking to align more closely, the pharmacy opening hours with the pharmaceutical needs in the neighbourhood – for example, if a local surgery extends its hours. In this case, if the pharmacy intends to modify its supplementary hours to match the new hours of the surgery, NHS England may be keen to ensure this happens with minimal delay.
NHS England has published a template notification form (see Chapter 18, Annex 8).
There is no requirement for NHS England to grant applications for changes to supplementary hours – the pharmacy has the right to amend hours so long as three months notice is given.
Temporary suspension of pharmaceutical services
A pharmacy contractor can apply to NHS England for permission to temporarily suspend the provision of pharmaceutical services – for example to close for two or three days during a planned refit. If NHS England is satisfied that the circumstances are appropriate, and at least three months notice has been given, NHS England may agree to the suspension of services. Unlike changes to Core hours above, there is no requirement to ‘make up’ any hours during the week of the closure.
NHS England has published a template application form (see Chapter 18, Annex 17 – planned closures).
There is no obligation on NHS England to grant applications for temporary suspension, so the pharmacy contractor will need to satisfy NHS England that the circumstances of the request are appropriate. Unless NHS England agrees, a pharmacy contractor cannot plan to temporarily suspend services (although a contractor could change any supplementary hours, provided adequate notice is given – see above).
Bank Holiday opening hours
A pharmacy must open to provide pharmaceutical services for its core contractual and supplementary hours each week. But, where the pharmacy would ordinarily be open on a day which is Good Friday, Easter Sunday, Christmas Day or a bank holiday, the hours that it would ordinarily be open will, on those days, be treated as having been open for the purpose of counting the core contractual hours that week. This means a pharmacy that has 8 core contractual hours on Monday to Friday, will, during the week leading up to Easter, be open for 8 hours on each of Monday to Thursday making 32 hours in total, and may close on Good Friday, because the 8 hours that the pharmacy is ordinarily open on a Friday are counted towards the 40 hours requirement, irrespective of whether the pharmacy is open. These are straightforward provisions, but the way that bank holidays are declared does cause some anomalies.
In England, the days that a pharmacy will not normally be required to open are:
- New Year’s Day
- Good Friday
- Easter Sunday
- Easter Monday
- Early May Bank Holiday
- Spring Bank Holiday
- Summer Bank Holiday
- Christmas Day
- Boxing Day
On these days, the core contractual hours at the times at which it would have ordinarily been open are counted towards the core contractual requirement without the pharmacy having to open on those days and at those times.
The NHS Regulations provide that Good Friday, Easter Sunday and Christmas day are always treated in this way.
But, for the other days, the status of the day depends on whether it has been formally declared as a bank holiday – or whether a substitute day has been introduced. Up to date information can be found on the Government’s business website.
Because these bank holidays may vary from year to year, pharmacies need to plan ahead and identify precisely which day is declared as the bank holiday. Where, for example New Years Day and Boxing Day fall at the weekend there may be substitute days declared, meaning that the pharmacy might have to open on the 26 December / 1 January where these fall on a weekend.
Notification of opening intentions on Bank Holidays
Pharmacy contractors are encouraged to inform NHS England whether their premises will be open on Bank Holidays. This information is obviously of critical importance to NHS England in order that it is able to plan pharmacy provision during holiday periods. If NHS England is not able to determine the opening hours of pharmacies, with a high degree of certainty, its option may be to issue directions to one or more pharmacies, requiring them to open. This clearly is not in the best interests of pharmacies if there are other suitable pharmacies that would have been open – so PSNC recommends that all pharmacies notify their intentions – and then open as they have notified.
NHS England has published template forms.
Changes to opening hours prior to Bank Holidays
PSNC would like to remind pharmacy contractors that contractual/supplementary hours can be changed by the application to/notification of the local NHS England team respectively, ensuring that in both instances, at least three months notice is given.
It is customary for some pharmacies to close early on Christmas Eve or New Years Eve, or other days on or adjacent to religious holidays but the terms of service require this to be planned, and notified to NHS England three months in advance if the hours that are affected by the early closure are supplementary hours, and subject to an application to change, again at least three months in advance if the hours are core contractual. It is likely that applications to change core hours will be rejected unless the pharmacy demonstrates changes to the needs of the patients and other users of the pharmacy for those periods.
Q. Do lunchtimes count towards core hours?
A. If pharmaceutical services are not being provided during a lunch period, this period will not count towards the core contractual hours.
Q. What happens if I don’t wish to open for 40 hours a week?
A. Contractors need to apply to NHS England for consent to open for fewer than 40 hours. NHS England is required to consider the pharmaceutical needs in the area before determining whether to grant such an application. In addition, where NHS England does decide to grant consent to a pharmacy contractor to open for fewer than 40 hours, it is able to direct which hours in the week the pharmacy must open. This may not necessarily be the hours chosen by the pharmacy, so pharmacy contractors should consider carefully, whether to make such an application.
Q. What if the pharmacy cannot open for the required number of hours due to a planned event (e.g. an external training event)?
A. If there is a planned change of hours, then there would be a need to ensure the pharmacy is still open for the required number of hours in the week. NHS England should be given the three months’ notice about the change.
Q. What if the pharmacy cannot open for the required number of hours due to events outside control of the pharmacy?
A. Where there is a temporary suspension for a reason beyond the control of the contractor, the pharmacy is not in breach of the terms of service so long as they notify NHS England as soon as possible, and use all reasonable endeavours to resume provision of pharmaceutical services as soon as practicable.
Q. Can NHS England force me to open for extra hours over and above my core contractual hours?
A. Provided the pharmacy is opening for the minimum of 40 (or 100 or other core contractual) hours, NHS England is able to issue a direction to the pharmacy to open for longer hours, but only if it is satisfied that the pharmacy will receive reasonable payment. There is a right of appeal where NHS England directs a pharmacy to open for additional hours. Pharmacy contractors are advised to contact their LPC if NHS England writes to suggest that it is intending to issue such a direction.
Q. Can NHS England refuse my application for amendment to my core contractual hours?
A. NHS England is able to refuse an application to amend the core contractual hours, subject to a right of appeal. The success of an application will depend on many factors, and pharmacists making applications should ensure they provide good evidence of any changes to the needs of people who may need pharmaceutical services in the area. NHS England is not able to refuse to accept notification of amendment to hours that the pharmacy opens additional to the core contractual hours, although three months notice must be given.
Q. The pharmacy has notified NHS England as soon as possible that for a reason beyond the control of the contractor, we could not open for our full number of contracted hours during the week, can NHS England insist that that we ‘make up’ these hours?
A. Where there is a temporary interruption of services, and this is outside the control of the pharmacy, and the pharmacy notifies NHS England, there is no obligation to make up the hours. A temporary interruption of services which is for a reason beyond the pharmacy contractor’s control include flooding of premises, lack of electricity, pharmacy premises broken into and the pharmacist not arriving. It does not include planned refurbishment. The Pharmacy Manual (Chapter 18) procedure does not include mention that pharmacies should be requested to ‘make up’ the hours.
The form to notify NHS England of the unplanned temporary suspension of pharmaceutical services is also available here. Pharmacy contractors must notify NHS England of the suspension as soon as practical and use all reasonable endeavours to resume provision of pharmaceutical services as soon as is practicable.
Q. When does a week start and end when calculating the hours that a pharmacy is open?”]
A. There is currently no interpretative provision in the pharmacy regulations. However, the guidance issued no NHS England regional offices is that the week beginsat 00:00 on Monday and ends at 23:59 on Sunday.
Q. The local surgery has decided to extend its opening hours. Do I need to give three months notice before I increase my supplementary hours to provide cover for those extended hours?
A. Although three months notice is normally required before supplementary hours can be amended, NHS England may consent to less. Any notification to NHS England of a change to supplementary hours with less than three months notice would be treated as an application for consent to give shorter notice. Unless NHS England consents, the change to the hours may be implemented after three months.
PSNC’s Regulation and Support Team have produced a quick reference guide for 2016.
A quick reference guide for 2017 has been published and appears in July’s edition of CPN.
Pharmacy contractors can obtain support on issues surrounding contractual hours by contacting their LPC.