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Decriminalisation and self-incrimination

1 September 2014

Any pharmacist who hasn’t been on Mars for the last few years will know that making a dispensing error is a criminal offence.

Convictions mean a lifetime criminal record, and pharmacists may have to face the GPhC’s Fitness to Practise, whether they are prosecuted or not.

The Department of Health’s Rebalancing Committee sees the decriminalisation of dispensing errors as a priority, but getting the law changed is taking a long time.

According to our records (which may be incomplete) there have been 5 prosecutions since the Peppermint Water case came to court in 2000.

The consequences for individuals and the profession have been very significant. In April 2009, Elizabeth Lee received a suspended 3-month prison sentence at the Old Bailey which the Court of Appeal later replaced with a £300 fine. 

In fact, this was the lightest fine a pharmacist has received for the offence.

The average fine in the twenty-first century has been £1500. The effect on the profession as a whole has been to drive pharmacies away from extemporaneous dispensing, and has deterred error reporting, which is an NHS requirement.

According to the Department of Health when setting up the Rebalancing Committee under Ken Jarrold to review medicines legislation:

“The threat of criminal sanction is widely believed to hinder the reporting of errors and therefore the learning from such errors. There is evidence that reporting and learning from errors supports patient safety.”

Some pharmacists may worry that if they report their errors, the GPhC will bring fitness to practise proceedings.

The presumption of innocence has been part of English Common Law for centuries and is enshrined in the European Convention on Human Rights. It means that no one can be forced to incriminate themselves.

However, this right only applies to criminal proceedings.

In other words, while dispensing errors remain criminal, it might be possible to defend a prosecution resulting from self-reporting.

However, fitness to practise proceedings are not criminal cases, and the right not to incriminate oneself will not be available in those proceedings. 

For example, in a 2005 case, Holder v the Law Society, the High Court ruled that a solicitor could not rely on the right not to incriminate himself when a case was presented to a disciplinary committee based on information he had been required to supply. Mr Justice McCombe said:

“We are not here concerned with the self−incrimination of a defendant with regard to an actual or potential criminal charge. We are concerned with the powers of a professional body to investigate the affairs of its members in the public interest and to discipline such members for breaches of the rules that apply to such professions.”

If pharmacists make a dispensing error, they have always faced the risk of fitness to practise proceedings (the modern concept for what, in 2005, were still being referred to as disciplinary proceedings). The fact that such errors are still criminal should not affect the decision whether or not to report the error. 

However, if discovered, an unreported error is likely to result in much more serious consequences than a reported one.

This year, the GPhC's Fitness to Practise Committee struck off a pharmacist for not reporting errors. When errors are decriminalised, non-reporting will probably be criminal because it will breach a new legal duty of candour.

Of course, cynics may say that if they do not report errors, they may not be found out. However, if patients suffer harm, the chances of preventing the GPhC from finding out seem small.

Ironically, when dispensing errors cease to be criminal, it may instead be a criminal offence not to report errors.

This article was written by Noel Wardle.

For more information please contact Noel on +44 (0)20 7203 5065 or noel.wardle@crsblaw.com