Email is a great way to communicate. Frankly, I prefer it to using the phone. With email, the person you want to communicate something to doesn’t have to be in or free to speak.

Even if the person you want to speak to happens to be in, we all hate holding on while a recorded message gives you instructions to press three, followed by the hash key, or having to hold while listening to music you don’t like.

There are times, however, when using the phone is unavoidable.

The Pharmaceutical Services Negotiating Committee (PSNC) committee met towards the end of last year to discuss what “other steps businesses might need to take in the absence of additional funding”.

At the time, PSNC's director for legal, Gordon Hockey, told C+D that the measures it had requested of the government included allowing pharmacies to close for certain hours of the day to help manage workflow.

The negotiator also considered other options for contractors, including not answering patient phone calls, or only doing so for a limited amount of time each day.

Read more: ‘Critical situation’: PSNC moots reduced opening hours amid NHS strike chaos

Meanwhile, an unhappy pharmacist recently tweeted about a patient's electronic prescription being sent to a different pharmacy. The patient wanted their medication.

Perhaps the patient was away from home and the prescription went to their regular pharmacy or perhaps it was just sent to the wrong pharmacy by mistake.

The patient tried to ring the other pharmacy to ask for the prescription to be returned to the spine, but the other pharmacy wasn’t answering the phone.

You don’t need me to tell you that not answering the phone is bad for business.

You also don’t need me to tell you that when you and every other staff member are busy in the dispensary, the consulting room, taking a delivery or already on the phone sourcing stock, it just isn’t possible to answer every call promptly.

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All the same, the unhappy pharmacist suggested that not answering the phone was affecting patient safety and was possibly in breach of contract.

If a pharmacy has been nominated by a patient, the team probably won’t know if the patient is away from home when the prescription comes through.

If a patient does not receive their medication because the prescription has gone to the “wrong” pharmacy and that pharmacy does not answer the phone, can the patient seek damages because of any injury they have suffered?

The law requires someone claiming damages to prove that a duty of care was owed and that the pharmacy that received the prescription both owed a duty of care and was negligent.

In my opinion, the pharmacy that receives the prescription may owe a duty of care if it is the nominated pharmacy.

However, the pharmacy’s obligation to the patient is to make the medication available with reasonable promptness. It is not part of the duty of care to answer the phone.

If the prescription has been sent to a pharmacy in error, I doubt if that pharmacy owes the patient a duty of care. After all, the prescription was unsolicited.

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Even if a duty of care was owed, a patient seeking compensation would have to prove that the pharmacy that received the prescription should have known the script had been sent to the wrong pharmacy.

They would also have to prove that their injury was foreseeable if the prescription was not returned to the spine within a reasonable time.

The legal position may be different if the phone was answered and the patient was given the wrong information – for example that the prescription had not been received – or the prescription was not returned to the spine.

That is because the conversation could give rise to a duty of care.

In a very recent Scottish case, a patient called Marguerite Henderson had made an appointment with her medical practice because she was worried about an injury to her finger. She alleged that the surgery receptionist had phoned her to cancel the appointment.

Unfortunately, sepsis had set in and Ms Henderson suffered catastrophic injuries. She lost her claim for damages because she could not prove what she alleged had occurred during the phone call from the surgery. Her account was not consistent with the surgery records.

Even though her case was unsuccessful, it highlights how even a simple phone call from someone who is not a healthcare professional could give rise to a large claim for damages if the wrong information is given.

The case also highlights the importance of making a contemporary record of conversations with patients.

As to our unhappy pharmacist’s reference to a breach of contract, this question is easier to answer. There is no contract between a pharmacy and a patient when NHS services are provided. That is because the patient does not pay the pharmacy for medicines.

The prescription charge is simply a tax that pharmacies collect on behalf of the government. There are obligations in the NHS terms of service to ensure that pharmacy staff and locums have access to, and are able to send and receive, NHSmail.

There is also an obligation for a pharmacy’s NHSmail account to be monitored with sufficient frequency to ensure the safe and effective supply of medicinal products. But there is no obligation to answer the phone.

Read more: Taking the pressure off: What do pharmacists want their future to look like?

When the patient could not get the other pharmacy to answer the phone, they should have sent an email.

 

David Reissner is a solicitor and chair of the Pharmacy Law & Ethics Association