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The legal view: The Pharmacy First service and professional liability

Noel Wardle outlines the potential risks for community pharmacists looking to provide the Pharmacy First service in England

In terms of the general law around liability, there are three parts to the law on negligence where a person is injured as a result of another person's actions. These are that the individual owed a duty of care to the injured person, the individual breached that duty of care, and the breach caused the injury.

There is not usually any question about the duty of care owed by a pharmacist. They will owe their patients a duty of care when they provide pharmaceutical services.

Read more: No state-backed indemnity for pharmacy is ‘unfair’ and ‘extraordinary’

In relation to whether a pharmacist has breached their duty of care, consideration of the Bolam test is required. This test requires the court to judge the pharmacist’s duty of care towards their patient against the standards of a reasonably competent professional in their field.

This isn’t the gold standard. For a pharmacist to defeat a claim they breached their duty of care, it is usually enough to show that a group of reasonably competent pharmacists would have performed the task in the same way they did.

In terms of whether or not the breach caused the injury, this is a question of fact having regard to the care that was provided and the patient’s injury. Did the pharmacist’s actions cause the patient to suffer harm, or was there some other cause?

Each case will depend on its own facts. However, whenever a pharmacist performs their professional functions, they must do so competently. This means they must not perform them negligently.

Read more: Explainer: Could the Pharmacy First service affect my clinical liability?

The same is true of the proposed Pharmacy First service in England. A pharmacist providing the service must provide it in line with a practice accepted as proper by a reasonable body of pharmacists who are skilled in providing that service.

There is always a risk that how a pharmacist performs a task is negligent and a patient will suffer harm as a result. Fortunately, those situations are relatively rare. However, the risk may increase the greater the pharmacist’s clinical role, particularly where they are performing an activity outside of their usual role.

It is therefore important pharmacists only agree to provide the Pharmacy First service where they feel that they have the necessary skills and resources to provide it safely. Pharmacists may retrospectively be required to demonstrate that they did have the necessary skills and resources to provide the service safely. They could do this by providing evidence of their competencies and training, for example.

Read more: Will additional funding for pharmacies prove to be a prescription for success?

Where a patient raises a concern about the treatment received under the service, either by a complaint to the General Pharmaceutical Council (GPhC) or an allegation of negligent treatment, the pharmacist may be required to explain why they provided the treatment they did as well as their clinical justification for providing – or refusing – a particular treatment.

Pharmacists should therefore ensure they gather all relevant information to enable them to treat the patient safely, this information is appropriately recorded, and the pharmacist records any appropriate decision-making and treatment.

The obligation applies even where treatment is provided under a patient group direction (PGD). A PGD is a mechanism whereby a medication, which must usually only be supplied in line with a prescription, can be supplied without a prescription provided the relevant PGD protocol is followed. In these circumstances, the pharmacist must ensure any treatment complies with the relevant PGD protocol and is safe and appropriate for the patient.

Read more: Pharmacy First set for national launch ‘by end of 2023’ following consultation

In conclusion, the development of any new service carries the risk that a pharmacist will provide that service negligently and a patient will suffer harm as a result. Pharmacists should therefore approach the provision of any new service with care to ensure they are confident they can provide it safely. They must then exercise reasonable care and skill in providing the service.

 

Noel Wardle is a partner at Temple Bright LLP, specialising in pharmacy law. This article does not constitute legal advice.

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