Courts could judge pharmacists for volunteers' actions, experts warn
While the GPhC and RPS will not deem pharmacies responsible for the actions of NHS volunteers delivering medicines, the law may hold them accountable, legal experts have warned.
NHS England’s service specifications for the community pharmacy pandemic delivery service state that, “where a volunteer is to be used, the pharmacist must be satisfied that the volunteer is an appropriate person to deliver medicines to the patient”.
Earlier this week (April 15), the General Pharmaceutical Council (GPhC) and the Royal Pharmaceutical Society (RPS) issued a joint statement on the use of NHS volunteer responders.
In the original statement, which has since been updated, the two bodies declared that pharmacy teams using NHS volunteers “in line with the service specifications of the pandemic delivery service” would not be “regarded as responsible for actions of other people outside of their control”.
However, Andrea James, a healthcare partner at Brabners law firm, highlighted that while the GPhC and the RPS may not hold pharmacies accountable for the actions of any volunteers they work with, the law might.
The fact that pharmacy teams are responsible for “ensuring that a volunteer is an ‘appropriate person’ to deliver medicines to vulnerable patients” increases the likelihood that they could be held liable if faced with “a claim from a patient as a result of an error or wrongdoing by a volunteer”, Ms James wrote in a blog for C+D today (April 17).).
In accordance with vicarious liability – “the rule of law under which a principal (such as, but not limited to, an employer) may be held responsible for the actions of someone else”, it is “possible, if not in fact likely,” that pharmacies could face a claim as a result of the actions of a volunteer,” Ms James said.
Ms James argued that the GPhC and RPS statement, as it was initially published earlier this week, was open to misinterpretation by pharmacists, as a court and not either organisation would be the adjudicator of any case involving vicarious liability.
She added that she welcomed the organisations’ promptness in updating the statement, which has now been revised to clarify that pharmacy professionals using NHS volunteers “in good faith in line with the service specifications of the pandemic delivery service will not be regarded as responsible” by the RPS and GPhC “for actions of other people outside of their control”.
We’ve updated our earlier joint statement with @rpharms to make it clearer. Thank you to those who pointed out how it could be interpreted. See our statement >> https://t.co/GEevfLUysQ pic.twitter.com/sMnJzTmJwh— GPhC (@TheGPhC) April 16, 2020
We’ve updated our earlier joint statement with @TheGPhC to make it clearer. Thank you to those who pointed out how it could be interpreted. Read our statement here: https://t.co/IaAJFcubMA pic.twitter.com/xIKfCZQbtE— Royal Pharmaceutical Society (@rpharms) April 16, 2020
In a statement published yesterday (April 16), the Pharmacy Law and Ethics Association said that the GPhC’s and RPS’s original statement could be “understood to mean that if a volunteer was negligent or committed some other tort, a pharmacy professional would not be held liable to compensate an injured party”.
“The question of any such liability is a matter of law for the courts to determine on the facts of any given case, so despite the broad wording, the joint statement is best regarded as limited to questions of professional conduct and fitness to practise,” the association said.
The Pharmaceutical Services Negotiating Committee (PSNC) said NHS England agreed that, should a pharmacist believe that a volunteer is not an appropriate person to deliver medicines, they can reject them and choose someone else. In such cases, the delivery could also be completed by the pharmacy under the advanced service.
However, Ms James said the current wording in the service specifications does not make it clear if pharmacies will in such cases be able to claim the £5 fee per delivery – plus an allowance for VAT – that they are otherwise entitled to under the terms of the advanced service.
“If a contractor…rejects a volunteer on the basis that they do not hold a recent DBS certificate, will their claim for the £5 and VAT fee subsequently be rejected?”, she asked.
“As currently worded, the service specification does not permit a pharmacist to reject any appropriate volunteer who is available to assist, including those non-DBS-checked NHS volunteer responders.”
Robbie Turner, Director of Pharmacy at the Royal Pharmaceutical Society told C+D today: “We know all pharmacy teams will be prioritising making sure the most vulnerable and shielded patients can still access the medicines they need. Due to the increased pressure caused by the COVID-19 pandemic, there may be situations where pharmacists need to use volunteers. Our guidance will help them do this in the safest way while making sure patients get their medicines.”
C+D has approached NHS England for comment.