Everyone makes mistakes. But when errors are made by pharmacists and other healthcare professionals, the consequences of a moment’s distraction can prove fatal.

In December 2007, Phillip Dean stood trial for manslaughter at Maidstone Crown Court, following the death of a patient who received 100mg of Oramorph instead of 10mg. Mr Dean was acquitted, and remains the only pharmacist in modern times to have faced a manslaughter charge.

Thankfully, the risk that pharmacists and other healthcare professionals take every day of being prosecuted for manslaughter seems to have receded since the Court of Appeal decision in July 2017 to overturn the conviction of optometrist Honey Rose. In this case, Ms Rose had failed, during a routine eye examination, to detect that seven-year-old patient Vincent Barker had a condition that later resulted in his death.

Medical manslaughter

Manslaughter is the common law name given to unlawful homicides which are not murder. In a healthcare setting, when there is gross negligence, it is sometimes termed ‘medical manslaughter’.

Before the Honey Rose case, a number of doctors had been prosecuted for manslaughter. One case in particular comes to mind. In January 1987, Alan Loveland underwent a routine operation for a detached retina at the Mayday Hospital in Croydon, where the anaesthetist was Dr John Adomako.

During the procedure, the tube connecting Mr Loveland to his mechanical oxygen supply became disconnected. Dr Adomako failed to notice this, and failed to notice when the patient had stopped breathing. The patient suffered a cardiac arrest and died, and an Old Bailey jury found Dr Adomako guilty of manslaughter. He was given a suspended six-month prison sentence, which he later unsuccessfully appealed.

When could a pharmacist be convicted?

In the Honey Rose case, the Court of Appeal reviewed and clarified the medical manslaughter law. The court held that a defendant could not be guilty unless it was reasonably foreseeable that the negligence gave rise to a serious and obvious risk of death.

For example, a pharmacist who mistakenly supplies propranolol to a patient whose prescription calls for prednisolone would not be guilty of manslaughter if the patient dies. In the recent case of the Northern Irish community pharmacist Martin White, his four-month suspended prison sentence and subsequent seven-month suspension from the Pharmaceutical Society of Northern Ireland register came after he admitted supplying a “medicinal product…which was not of the nature or quality specified in the prescription”.

A simple picking error, or failure to spot that a dispenser has made a picking error, would probably not be classified as gross or criminal negligence. On the other hand, a pharmacist who supplies morphine sulfate 100mg to a patient who has been prescribed a 10mg dose might be convicted.

A pharmacist who negligently fails to signpost a patient to a GP is also unlikely to be convicted of manslaughter if the patient dies, unless the risk of death – or something potentially life-threatening – should have been obvious to the pharmacist at the time they saw the patient.

Can a company commit manslaughter?

The Corporate Manslaughter and Corporate Homicide Act 2007 says that a company is guilty of an offence if the way in which its activities are managed or organised causes a person’s death, and involves a gross breach of duty owed by the company to the deceased.

In order for an offence to be committed, the prosecution must prove:

• the way a company’s activities are managed or organised by its senior management is a substantial element in the breach of duty that has caused death

• the conduct alleged to amount to a breach of duty to a patient falls far below what can reasonably be expected of the company in the circumstances.

The words “senior management” refer to the people who play significant roles in the company’s decision-making, or in how a company’s activities are managed. A superintendent pharmacist would probably fall within this definition, and so might a multiple’s area manager. But responsible pharmacists would usually fall outside the scope of the Act unless they have a role in the management of the whole company, not just a particular branch.

It is likely that if a patient dies following a dispensing error at a pharmacy owned by a company, then the investigations will focus on whether suitable standard operating procedures were in place and whether they were being followed. Juries will be allowed to consider the corporate attitude, policies and systems concerning safety issues, in order to form a view about whether these were likely to have encouraged or tolerated any breach of duty to a patient whose death has been caused.

The sentence of the court

Where there is a conviction, the sentence will always depend on the circumstances. But convictions of individuals for medical manslaughter typically result in a suspended prison sentence, though immediate imprisonment is possible in an exceptionally serious case.

Guidelines in corporate manslaughter cases say that companies should be fined – seldom less than £500,000 and perhaps as much as millions of pounds. Companies can also be ordered to take remedial steps, and to publish a statement on their websites. These sentences are intended to have a deterrent effect, and to encourage others to maintain appropriate standards.

David Reissner is senior healthcare partner at law firm Charles Russell Speechlys LLP