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Legal view: Pharmacy contractors have a duty to try to acquire PPE

Contractors have a legal obligation to take steps to ensure the health and safety of employees as best they can during the COVID-19 outbreak, says solicitor Rachel Warren

There has been much debate recently about personal protective equipment (PPE) for those providing healthcare to patients who may have COVID-19.

Issues under discussion have ranged from what PPE is necessary – masks, gowns or gloves – to who should have access to the equipment. There have also been problems with people being able to obtain PPE and concerns as to whether items that have passed their expiry date are still effective.

While much of the emphasis has been on PPE for hospital staff, pharmacy teams are also at the frontline of healthcare, and as such have fallen within the categories of workers who should be provided with PPE.

Guidance from Public Health England (PHE) has been updated on a number of occasions in response to evolving scientific information. The most recent guidance (April 12) states that pharmacy staff working within two metres of a possible or confirmed case of COVID-19 should wear a fluid resistant surgical mask.

Many pharmacy staff fall within this category, particularly as patients continue to defy government guidance and seek advice from pharmacies despite the fact they have symptoms of the virus. Nevertheless, concerns have been raised that some community pharmacies are still struggling to access PPE.

An aspect of this debate that hasn’t been emphasised is the fact that under health and safety laws, employers also have a legal obligation to ensure the health, safety and welfare of those working for them as far as they are reasonably able.

This duty extends to others who may be affected by the operation of the business. A failure to meet this obligation is a criminal offence. In the context of COVID-19, this means taking reasonable steps to minimise the risk of someone catching the virus.

Despite the pandemic, this legal requirement remains in place, something that has recently been emphasised by the Health and Safety Executive.

The issue of what measures are reasonable in these unusual circumstances is key, particularly as far as steps taken to source PPE are concerned. However, there are other practical considerations that pharmacy owners should take into account when giving careful thought as to how they are going to fulfil their duty.

In addition to taking all reasonable steps to obtain PPE, and enforce social distancing, examples of additional things that should be done include:

  • carrying out a written risk assessment to identify which members of staff will need PPE
  • instructing and training them on how and when to use PPE
  • explaining to staff why it must be used and what its limitations are
  • making sure there are no exemptions for wearing PPE for tasks that only take a few minutes if they require the equipment
  • updating or creating relevant health and safety policies both generally, and to reflect changes to government guidance on the use of PPE in community pharmacy.

All steps should be recorded in writing, so should there be any challenge in the future on health and safety in the pharmacy, evidence of what was done to meet the legal requirement can be produced. Pharmacy owners should make sure they meet their obligations.

Rachel Warren is legal director at law firm Charles Russell Speechlys specialising in healthcare

Read the latest government guidance on PPE usage in community pharmacies here


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