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Thu, 03/06/2010 - 09:16 -- CDPulse Admin

The former locum had the jail term she received for a dispensing error quashed last week. But will her appeal victory keep similar cases out of the criminal courts? Max Gosney reportsFor one pharmacist at least the threat of criminal punishment for a single dispensing error has been lifted. Elizabeth Lee left the Court of Appeal on May 26 with her suspended jail sentence quashed. The reversal will bring heady cheers in dispensaries across the land, but this remains a victory tinged with disappointment.But first let’s take the positives. The highest court in the land has overturned a custodial sentence for a dispensing error. Ms Lee was a promising young pharmacist when she arrived for a locum shift at a Tesco store in Windsor in August 2007. Later that day she supplied propanolol instead of the prescribed prednisolone to cancer patient Carmel Sheller, who later died.The mistake saw Ms Lee punished with a three-month suspended jail term by the Old Bailey last March. The presiding judge stressed Ms Lee bore no factual or legal responsibility for Mrs Sheller’s death, but she was convicted under section 85.5 of the Medicines Act nevertheless. Just over one year on and the Court of Appeal nullified the terms of that conviction. The court ruled that section 85.5, which makes it an offence to attach the wrong label to a medicine, should not be applied to employed or self-employed pharmacists. The judgement is a clear boost for employees and locums who will now avoid the threat of criminal charges under labelling offences. The risk for contractors though remains as the Court of Appeal ruled pharmacy owners are still accountable for breaches of section 85.5. But even though the ruling lifts the threat of prosecution for employees and locums under one part of the Medicines Act, it leaves a second area untouched. Despite Ms Lee’s successful appeal, pharmacists could face criminal prosecution for wrong product supply under section 64.1 of the act. Ms Lee was originally charged under both wrong product supply (64.1) and attaching the wrong label (85.5) offences. However, as she pleaded guilty to the 85.5 breach, the judge chose not to proceed with the charge under 64.1.But once Ms Lee’s conviction under 85.5 was quashed at last week’s appeal, the prosecution requested judges substitute for the 64.1 offence instead. The Court of Appeal judges called for the matter to be considered at a retrial. But, Ms Lee has been explicit in her desire not to return to the court again. “It would be like returning to the scene of a road traffic accident,” one member of her legal team told C+D. The prosecution advised the Court of Appeal that they would push ahead for retrial unless it dealt with the 64.1 offence immediately. Ms Lee’s legal team had no choice but to concede. The judges switched the 85.5 conviction for a 64.1 offence and issued Ms Lee a £300 fine.This substitution deal means dispensing errors remain open to criminal prosecution and it has left a sense of unfinished business around those closest to the case. Mark Koziol, PDA chairman and member of Ms Lee’s legal team, says: “As a consequence of events we did not get an opportunity to put our legal arguments about the appropriateness of the section 64.1 offence as we feel that had we done so, then more progress could have been made.”Pre-hearing, Ms Lee’s legal team had been confident of successfully tackling the 64.1 offence. Their chances hinged on the prompt publication of dispensing error guidance from the Crown Prosecution Service (CPS) promising pharmacists greater protection against prosecution for errors. Ms Lee’s legal team aimed to convince judges a retrial under 64.1 could not take place with rules over dispensing errors about to change. But the bid was to be scuppered almost immediately. Within minutes of the Court of Appeal hearing, the CPS said it could not guarantee guidance arriving anytime soon. In fact discussions between the CPS, the Department and the RPSGB had hit “difficulties” over defining the public interest in dispensing error cases, judges were told.“We were dealt a curve ball by CPS saying this was in the long grass,” Mr Koziol told C+D outside the court room. “That wasn’t our understanding and it meant we had to focus on the 85.5 offence. We could have overturned both.” Ultimately the appeal fell short of total victory. But it would be a harsh critic who considered it a disappointment. Ms Lee can get on with her life free from the burden of a custodial sentence and pharmacists are better protected against prosecution for errors. The sector must now make sure this protection becomes full rather than partial without losing another aspiring pharmacist like Ms Lee along the way.The Elizabeth Lee Court of Appeal caseThree successes•     Custodial sentence quashed and switched to a £300 fine•     Employees and locums shielded from labelling offences•     Fine, not jail term is now the precedent for Medicines Act breachThree disappointments •     Wrong product supply offence remains •     Ms Lee unlikely to practise again •    No sign of dispensing error protection guidelines in near futureHow the Elizabeth Lee case unfoldedAugust 2007Ms Lee dispenses propranolol instead of prednisolone while locuming for Tesco in Windsor. Patient collapses after taking tablets and is admitted to hospital – she later dies.April 2009Ms Lee is sentenced to suspended three-month jail term at Old Bailey. Judge rules she is not responsible for the patient’s death.April 2009Online petition in support of Ms Lee and calling for decriminalisation of dispensing errors launched.June 2009MPs discuss decriminalisation of errors at all-party pharmacy group meeting. Chief pharmacist vows temporary protection against charges.March 2010Coroner’s inquest finds Ms Lee’s error did not cause patient’s death.May 2010Ms Lee’s jail sentence for error quashed.

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