Criminalisation of dispensing errors continues to haunt pharmacy
The suspended prison sentence passed on Northern Ireland pharmacist Martin White is deeply troubling for the pharmacy profession.
Mr White had been convicted under section 64 of the Medicines Act 1968 of supplying a product that was not of the nature or quality prescribed – propanol instead of prednisolone.
It is obvious that anyone – whether a healthcare professional or not – who deliberately harms another person should be punished. It is equally obvious that healthcare professionals do their best to help patients, not harm them. There is no good reason why pharmacists who make dispensing errors should be singled out as criminals. Pharmacists are as prone to human error as anyone else. However, except when grossly negligent errors cause death, no other healthcare professionals are prosecuted for their mistakes.
The wording of section 64 of the Medicines Act 1968 was borrowed from food legislation enacted in the post-War years, designed to punish people who deliberately adulterated food. It was a time when many medicines would have been extemporaneously prepared rather than mass-produced as they are today. There is no justification for retaining Medicines Act offences in the 21st century when deliberate adulteration can be treated as an offence under other legislation, and all healthcare professions are governed by independent regulators with statutory powers.
As for Martin White's sentence, it is just the latest example of how prosecutors and judges often fail to understand or appreciate that the offence is out of date, and that pharmacists who make mistakes are not wicked. When an English pharmacist, Elizabeth Lee, made exactly the same error as Martin White, the Court of Appeal said in 2010 that a suspended prison sentence was manifestly excessive, and substituted a £300 fine.
Since then, implementation of a Government promise to decriminalise dispensing errors has been repeatedly delayed. Although the Crown Prosecution Service in England has introduced guidelines aimed at limiting the prosecution of pharmacists for dispensing errors, the message has not got through.
Pharmacists may be justifiably alarmed that one of their number has been convicted and given a prison sentence because of a dispensing error. Prosecuting pharmacists who make mistakes does not enhance patient safety.
The introduction of a statutory defence to section 64 of the Medicines Act will not remove the fear of prosecution altogether. Prosecuting authorities across the UK should not be permitted to bring cases without consulting the General Pharmaceutical Council or the Pharmaceutical Society of Northern Ireland. These regulators have a duty to protect the health and safety of members of the public. They will usually be able to advise prosecutors that in a case of sufficient seriousness, prosecution is disproportionate because fitness to practise proceedings can be brought – and decided by a tribunal with appropriate expertise.
This article was written by Noel Wardle. For more information please contact Noel on +44 (0)20 7203 5065 or firstname.lastname@example.org.
This article was originally published in The Pharmaceutical Journal on the 13th January 2017.
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