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Prosecutions, Dispensing Errors and Fitness to Practise

16 April 2014

When the Medicines Act is amended so that dispensing errors are no longer criminal, the offence of supplying the wrong product will be replaced with a new offence.

Pharmacists and pharmacy staff are currently the only healthcare professionals who are prosecuted for errors that do not cause death, but when the Government implements its response to the Francis Report, all healthcare professionals will have a legal duty of candour, and they may be prosecuted for willful or reckless neglect or mistreatment - even if a patient does not suffer harm.

As it happens, the Francis Report is already being reflected in decisions of the GPhC's Fitness to Practise Committee.

In one case recently heard by the FtP Committee, a pharmacist had already been convicted for supplying the wrong strength of Warfarin.

The CPS prosecuted the pharmacist and he was fined £3,400, which I believe to be the heaviest penalty imposed by a court on a pharmacist. The level of fine seems completely out of kilter with the £300 fine the Court of Appeal had said was appropriate in the case of Elizabeth Lee, especially when you consider what happened when the Warfarin case reached the FtP Committee.

The Committee decided that the Warfarin error did not amount to serious misconduct let alone impair the pharmacist’s fitness to practise or merit a sanction. It makes you wonder how a prosecution can have been justified.

However, the FtP Committee was concerned that the pharmacist failed to take adequate steps when he realised an error might have been made. This failure impaired the pharmacist's fitness to practise, and he was given a warning.

Similarly, in another case reported recently by C&D, the FtP Committee struck off a pharmacist who failed to own up to errors and avoided recording errors and near misses.

In other words, legal changes have yet to be implemented, but the FtP Committee is already being influenced by the Francis Report and proceeding on the basis that pharmacists have a duty of candour.

It is encouraging that instead of treating errors as professional misconduct, the Fitness to Practise Committee is focussing on how pharmacists have behaved when learning of dispensing errors.

However, I am concerned that the CPS and the courts are still capable of overreacting when errors are made. Can they be trusted to get things right when the new offence of willful neglect is introduced?

This article was written by David Reissner.

For more information please contact David on +44 (0)20 7203 5065 or david.reissner@crsblaw.com.