The burdens of history

Pharmacy’s progress over the past 200 years owes much to a few dedicated individuals who put the greater good of the profession they represented above their own personal interests. For the past 160 years this has been done largely through the Royal Pharmaceutical Society of Great Britain. Legislation has largely underpinned the development of the profession, and the promotion of Bills through Parliament has been a vital activity. Yet pharmacy also has a long history of shooting itself in the foot and of not fully anticipating the long-term consequences of its actions.

One such occasion was when apothecaries became recognised as medical practitioners following passage of the Apothecaries Act in 1815. The Act gave them certain powers against others. Unqualified persons were forbidden to act or practise as apothecaries under penalty of £20. Subsequently, the courts held that to practise as an apothecary was “to judge of internal disease by symptoms and to supply medicine to cure that disease”. The chemists and druggists (who had emerged as the key retailers of medicines during the 18th century) opposed ths provision. In order to buy off chemists’ opposition, the apothecaries offered to insert a clause in their Act which would allow “all persons who should at that time or thereafter carry on that business to do so as fully and amply to all intents and purposes as they might have done in case this Act had not been made”.¹

Victory

This was a considerable victory for the chemists and druggists, but they were not happy with the clause. They drafted another which defined their business as consisting of “buying, preparing, compounding, dispensing and vending drugs and medicinal compounds, wholesale and retail”. This amendment was accepted with disbelief by the apothecaries, for the chemists and druggists had failed to include any mention of prescribing. Indeed, the apothecaries subsequently obtained penalties from chemists who prescribed remedies for customers. As Wootton commented in 1910: “Such prescribing would have been legal if the druggists had accepted the [original] provision proposed by the apothecaries. But they had limited themselves out of it.”¹
Ensuring that they kept the trade in medicines to themselves blinded them to the fact that they were giving away the right to prescribe. But for the “druggist clause”, pharmacists might still have precribing rights today.

Unfortunately, the lesson had not been learnt by the time the Pharmaceutical Society attempted to secure passage of the Pharmacy Act in 1868. It was this Act which established the principle that every person who dispensed poisons should be qualified and registered. This would create a form of statutory professional title that would be entirely personal in character. Only a registered pharmacist could own a pharmacy. Limited companies would not be eligible to be so designated. But the Society’s Council had an extra clause inserted into the Act. This said that “in the event of the death of a registered person, the qualification which is vested in his person shall pass to his executors, or to his widow and children, provided that a registered assistant is employed”. As Holloway asks: “If widows or executors were able to keep open shop for the sale of poisons, what grounds were there for denying the right to company directors?”²

Tested

It was this clause that was tested in the case of The Pharmaceutical Society v The London and Provincial Supply Association in 1880. The decision of the House of Lords opened the door to the company chemists, allowing limited liability companies to carry on the business of a chemist and druggist even though none of the shares was owned by a pharmacist and the business was not managed by a pharmacist.³
The decision meant that companies were not permitted to use titles that had been restricted to chemists and druggists by the 1868 Act. All that was needed was for the sale of poisons to be under the control of a qualified person. Pharmacists had shot themselves in the foot again. But for the “widow’s clause” there might be no pharmacy multiples today.

Unfortunately, the dangers inherent in pharmacy using legislation for its own advantage had still not been fully learnt by the early part of the 20th century. William Glyn-Jones had been appointed Secretary to the Society in 1918. His vision for the Society was that it should become a “British Medical Association” for pharmacy and establish an industrial council which would negotiate terms of service for its members. One of the original aims of the Society had been to “protect the trading interest of its members”.⁴
The Privy Council already regarded it as a trade union; the safe thing to do would have been simply to go ahead and set up the industrial council.

Glyn-Jones seems to have felt that the Society’s position would be very much strengthened if it was formally confirmed by the courts. He appears to have had no doubts about the outcome of such a case: the Society could not lose. It was left to the one non-retail pharmacist on the Council (Arthur Jenkins, a hospital pharmacist) to be the plaintiff. But not only did the Society lose the Jenkins case in 1923, it became much weakened as a result. The same year saw the establishment of the National Pharmaceutical Union (to represent independent community pharmacists) and the Guild of Public Pharmacists (to represent hospital pharmacists).

Such an outcome can scarcely have been imagined by Jacob Bell and his colleagues when he founded the Society in 1841. (Indeed, Holloway suggests that the NPA is the direct descendant of the original Pharmaceutical Society.⁵
) Certainly, it was not the outcome that Glyn-Jones had expected or even imagined although, characteristically, he set about attempting to limit the damage. Yet, as a result of this one decision taken by a very few individuals, pharmacy in Britain was never to be the same again.

Milestones

These milestones in the history of pharmacy have a number of features in common. In each case actions were taken by a small group of individuals who genuinely felt that what they were doing was in the interests of their members. On each occasion pharmacy saw its best interests served through the wording of legislation, but in each case the interests of pharmacy would have been better served by doing nothing.

This is not to argue for the laissez-faire: clearly, that presents its own dangers. But the defining moments described here offer cautionary tales from history. Pharmacy should initiate new legislation and amend proposed legislation with great caution, and it attempts to predict the outcomes of court decisions at its peril.

As we begin a new century the lessons of the past are clear. The few who hold the future of the profession in their hands will not always be right, no matter how dedicated, how well advised, or how certain they are in their belief in the best interests of members. Much of their time will be spent dealing with the consequences of battles that were lost by their predecessors, although they were sometimes fought with the very best of intentions. Such are the burdens of history.