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In the UK the NHS provides free-of-charge health care, with a few exceptions e.g. a patient has to pay about £8 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 can not 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 applied, then the patient could return the drug as not suitable for the particular purpose.

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

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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).

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  • As all drugs are £8, it is subsidised by the NHS. Therefore is it them that sold it to me, or the pharmacist? Sep 12, 2017 at 19:19
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    The person who sold something to you is the person to whom you paid the money. Whether the price was subsidised by the NHS, the Medicines Agency, the EU, the manufacturer or all of them is irrelevant for this purpose Sep 12, 2017 at 20:28
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    "the pharmacist has no discretion to alter it". - Are you sure about that? I thought a pharmacist did have limited discretion to alter a prescription (for obvious errors). Jun 11, 2018 at 13:08
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    @Martin: I have just asked a pharmacist about this, and apparently there is no discretion. Even "20 large pills rather than 40 half-size ones we don't have in stock" requires the doctor's approval over the phone, and "solution rather than tablets" definitely needs a new prescription. Of course, this may be a CYA policy rather than law, but the practical effects are the same Aug 30, 2018 at 16:57
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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.

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    Agreed; if you buy clothes in the wrong size, you do not automatically have the right to a refund. Sep 13, 2017 at 22:11
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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.

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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).

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    But it seems there was nothing wrong with the medication per se in this case, it was perfectly fine, and what the GP prescribed.
    – gnasher729
    May 25 at 12:20

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