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Competition rules

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‘The DTI drives our ambition of ”prosperity for all“ by working to create the best environment for business success in the UK. We help people and companies become more productive by promoting enterprise, innovation and creativity.’

Those words grace the cover of a consultation package on the draft Supply of Prescription Only Medicines (Veterinary Use) Order 2005, which was issued by the Department of Trade and Industry (DTI) last week after more than 18 months in the pipeline. Some might question their relevance in this context. The Order, to be made under the Fair Trading Act 1973, is intended to implement the recommendations of the Competition Commission on the supply of prescription-only veterinary medicines (POMs), which were published in April 2003 and immediately accepted by the Government see VR, April 19, 2003, vol 152, pp 481, 482-484). The Competition Commission had found that ‘complex monopolies’existed in the supply of POMs, and its recommendations were intended to put that right. The veterinary profession was given no opportunity to comment on the final recommendations, although, along with other interested parties, it was consulted on an initial draft of the Order,which was issued a few weeks later (see VR,May 10, 2003, vol 152, p 574). The revised draft which has now emerged (see pp 262-263 of this issue) shows that, while account has been taken of some of the profession’concerns, the main thrust of the proposed legislation remains unchanged: now, as in 2003, the Government is determined to see the recommendations implemented.

Useful changes made as a result of the preliminary consultation include an exemption which will mean that veterinary surgeons ‘will not be required to comply with obligations to advise clients of the prices of POMs, the availability of, and charge for, prescriptions and the costs relating to repeat prescriptions in emergency situations where, in the view of the veterinary surgeon, it would not be reasonable on the grounds of animal health or welfare to delay the supply and administration of the POM until such advice could be given’A further exemption will mean that it will not be necessary to advise clients of the availability of and charge for prescriptions where the POM to be supplied is to be administered by injection and is only available in packs containing multiple doses. Other exemptions will remove the requirement to give such advice where clients have confirmed in writing that they do not want it (with the confirmation being valid for one year) or where clients have confirmed that they want the veterinary surgeon to administer the POM (for example, if it is to be administered during surgery or a consultation).

One of the most contentious, not to say unreasonable, of the Competition Commission’s recommendations was that, for three years after its recommendations were implemented, veterinary surgeons would not be able to charge clients for writing a prescription. The requirement still features in the Order, but it would appear that some progress has been made over the past 18 months, in that the DTI now makes clear that ‘neither the Competition Commission nor the Government are saying that veterinary surgeons should not be paid for the work they do’.Vets will still be prevented from charging for giving prescriptions, but the revised Order makes clear that they will be able to recover the costs incurred, provided that they do so in a manner that does not discriminate between clients to whom they give a prescription and those to whom they do not in the prices and fees that they charge. The DTI suggests that this could be done by adding an amount to the consultation fee.

Another significant development concerns the Competition Commission’s recommendations requiring practices to make information about prices and policies on POMs available to clients. The original intention was that these measures should be implemented under the proposed Order.However, the DTI is now suggesting that, in line with the Government’s Better Regulation agenda, they could be implemented through the RCVS Guide to Professional Conduct instead, provided this meets the desired aims. Such an approach would undoubtedly be preferable, not least because the appropriate regulatory mechanism is already in place.

The DTI‘s intention is that the new rules should come into force at the end of October, at the same time as the new Veterinary Medicines Regulations,which are currently the subject of a separate consultation being undertaken by the Veterinary Medicines Directorate (see VR, January 8, vol 156, pp 29, 30-31). Between now and then the DTI intends to update the Order in the light of the regulations as they emerge. This could be an interesting exercise, and there will be a need to constantly cross-refer between the two sets of proposals in assessing the implications.

Despite the explanations given in the consultation document, the Competition Commission’s recommendations still seem bizarre in animal health and welfare terms, although it is clear that the Government remains determined to implement them.At the same time, the document indicates that the DTI may be prepared to be a little more pragmatic about implementing the recommendations than appeared at the outset. It seeks views on potential costs or savings for individual businesses, and whether recommendations could be implemented by changing the Guide to Professional Conduct. Time is short, and comments have been invited by May 13.

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