There is absolutely no need for dispensing errors to remain criminal offences. There are already existing offences, for example under the Offences Against the Person Act, that are adequate to deal with deliberate provision of a medicinal product that is not of the nature or quality demanded.
By way of modern usage of this act, the nurse Victorino Chua was sentenced to life imprisonment at Manchester Crown Court for deliberately administering poison to patients at Stepping Hill Hospital.
No other health professionals commit an offence if they make an honest mistake (short of gross negligence manslaughter) and there is no reason to prosecute pharmacists for making an honest mistake.
What do you think Parliament or the public would say if you tried to introduce an offence for GPs who showed “deliberate disregard” for patient safety? They would say this is a matter for the profession's regulator, not the criminal law.
There needs to be a consistent approach to the way medicine errors are treated. Most dispensing errors are the result of someone picking up the wrong item from a shelf in a pharmacy and the error not being spotted before the wrong item is supplied.
Under the current proposals, it will remain an offence if a pharmacist makes a mistake when asked to sell a pharmacy medicine or a GSL medicine. Why should this be the case, when a defence is available for errors relating to more potent prescription-only medicines? There is no principle of criminal law that would underpin a distinction between over-the-counter medicines and prescription medicines.
Another problem is that the proposals do not tackle other existing offences. They focus on section 64 of the medicines act, which seeks to “purchasers of medicinal products”. But supplying the wrong prescription-only medicine is also an offence under regulation 214 of the Human Medicines Regulations 2012.
Similarly, applying the wrong label will often be a criminal offence – although Elizabeth Lee was convicted of supplying the wrong medicine, she was originally prosecuted for a labelling offence, and the labelling offence can still be used to prosecute pharmacists who own their own businesses.
If the proposals go ahead as planned, pharmacists will remain liable for errors committed by a non-registrant under their supervision. This could potentially lead to a reluctance to delegate and supervise. Additionally, non-registrants may be reluctant to take on dispensing roles if they are at risk of prosecution. These factors may add to the workload of pharmacists and increase the risk of error.
The current law inhibits good pharmacy practice. The proposed changes do not go far enough to remove the inhibitions and, in some respects, will hinder good pharmacy practice.
This article was written by David Reissner and was published in Chemist & Druggist on 20 June 2015