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Courts could judge pharmacists for volunteers' actions, experts warn

Pharmacists will not face regulatory action for the actions of volunteers
Pharmacists will not face regulatory action for the actions of volunteers

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.

Vicarious liability

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”.

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.

Rejecting volunteers

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.

16 Comments
Question: 
What do you make of the GPhC's and RPS's statement?

Benie I, Locum pharmacist

Somebody should email Rudkin and garner his opinion if he isn't too busy auditing pharmacist wages at the moment.

Ebers Papyrus, Pharmaceutical Adviser

DHSC and NHSE have eroded margin and capital so much from community pharmacy since Simon Stevens took the reins that they’ve been forced to issue a £300 million cash advance as an emergency cashflow net due to dispensing losses. Furthermore, they realised they had no choice but to enlist volunteers to deliver prescription medicines to the most vulnerable within our communities. It really has been a shocking era for the sector and for the pharmacies up and down the country who operate on the bare bones due to this sustained unevidenced multi directional attrition. The fact the sector has stood up to be counted while others have shielded away should be moment of great pride for pharmacy teams up and down the country. Clearly however enough is enough. 

Something has to give after this pandemic settles because the take it or leave it, smash and grab style of abusive treatment from NHSE and DH is destroying our sector and letting the communities we serve down.

Soon-To-Be Ex-Pharmacist, Superintendent Pharmacist

And how do we stand legally if we REFUSE to use volunteers because of this? Bet THAT would leave us open to FtP proceedings so, surprise surprise, the pharmacist is once again caught between the rock and hard place where we seem to have spent most of the last twenty or so years. I will be soooooo glad when this covid rubbish has run it's course, we're all either dead, immune (if there is any immunity - who knows?) or vaccinated (if that comes to pass any time relatively soon) so that I can complete my master plan to totally pack in this stupid stupid contradictory car crash of a profession and do something I may actually enjoy. I used to think that as a pharmacist, I was lumbered with being a pharmacist for ever but since I've been looking elsewhere, I've realised that we have an ENORMOUS transferrable skill set and the world, although probably a bit less well paid, but infinitely more enjoyable, is genuinely our oyster. We just have to survive the next few months, is all.

Brian Plainer, Locum pharmacist

Couldn't agree more - It's this profession versus the delightful legal profession, most of whom are currently sat cosily at home twiddling their thumbs playing on their fanny banjos and thanking their lucky stars that they don't have to face a rampant killer virus on the front line like pharmacists do for a measily £20/hr (which GPhC insist we musn't be unprofessional trying to get more), as they figure out how to make the next grand buck in their law firms pockets once all this is over - grandly sick !

Chris Pharmacist, Community pharmacist

Where possible the patient should arrange for their own volunteer to collect their Rx instead of pharmacies. We give patients the number of the local organisation that has volunteers details. That way the liability isn't on pharmacies as the volunteer isn't acting as an employee.

Dodo pharmacist, Community pharmacist

Which is fine but our patients are being told by the local agencies that they cannot accept any more patients because they have too many already

Kevin Western, Community pharmacist

What is really really stupid about this is that the RPS, the GPhC and the PSNC, most of whom must be awash with legal advice at our expense, didn't realise. Or care.
If we use a volunteer we probably don't know at all, we have the same liability as using an employed driver, but we aren't paid for organising the delivery....sounds like a great deal to me. Not!

mark straughton, Pharmaceutical Adviser

Really not sure anyone in receipt of a free prescription delivery by an NHS volunteer has an appetite for imposing any litigation on anyone in the current climate 

 

Benie I, Locum pharmacist

Your clearly mistaken. Litigation will be rife just as soon as the covid19 profile dies down. And it will likely be the families of deceased/disabled  NHS workers.

O J, Community pharmacist

You clearly have no idea what few rotten members of general public are capable of.

mark straughton, Pharmaceutical Adviser

Yes, you're right. I'm aware of how nasty people can be.

But I know of many independents that have drivers which haven't signed a contract or SOPs or even had a DBS. They're wide open, along with the employer, to any liabilities 

Caroline Jones, Community pharmacist

Surely this is the same as ‘Joe Bloggs’ picking up people’s medicines - and this happens now? Long before COVID-19

Kevin Western, Community pharmacist

If Mrs Smith asks Joe blogs to pick up her script and he does something wrong, it's between them to sort. If I choose Joe, it's at least partially, if not wholly my fault in the eyes of the law.

Brian Plainer, Locum pharmacist

Are our guidance lawyers putting their families lives at risk by personally undertaking the altruistic work of these volunteers? I mean they're aware of the risks, so no excuse to actively pro-offer to assist scared elderly patients. No, they're instead working to frighten pharmacists and mainly honourable community volunteers of potential unintended consequences.

Arrogant law firms are one major part of why the NHS is so under-resourced to fight Covid-19 and possibly part of why pharmacies have been kicked to death for decades. They're sat on todays useless assets of self-justified "rewards" while we are just cannon fodder. Who could possibly argue their own rewards case while discrediting others better than lawyers and protected by over-representation in parliament?
Hope this message is getting over loud and clear. Put yourselves at harm's risk for others before pontificating to us who do. Donate your extraordinarily large assets for purposes that can save lives, not embellish your own. These are basic humanitarian demands. Once achieved and when this awful period is over we can deliberate details. Unless you've anything better to offer, stay well away and let those who are able and willing, get on with their work unhampered and with greater reliance on trust.

Dodo pharmacist, Community pharmacist

Exactly right 

Really? Wow, Superintendent Pharmacist

My insurers were not keen at all on this... and this is exactly why!

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