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CPS: Prosecution for errors is 'barrier' to duty of candour

The Scottish government wants to ensure pharmacists report "unintended incidents" that result in patient harm

Inadvertent errors must be decriminalised before Scottish government requirements to report incidents of harm can be effective, says Community Pharmacy Scotland

The Scottish government could struggle to enforce its planned duty of candour requirements until dispensing errors are decriminalised, Community Pharmacy Scotland (CPS) has warned.

The government published a bill earlier this month (June 5) that would require all Scottish healthcare professionals - including community pharmacists - to be open with patients who suffered unintended harm during treatment.

But CPS said the threat of a prosecution for an inadvertent dispensing error would remain a “barrier” to enforcing the requirements.

The UK government plans to create a legal defence against these prosecutions by next year, and CPS pharmacy services manager Matt Barclay told C+D last week (June 10) that "every pharmacy body" wanted this issue "to be dealt with".

If the Scottish parliament passed the bill on the duty of candour, healthcare professionals would be required to notify patients and make an apology if an “unintended or unexpected incident occurred in the provision of a health service”. This could include death, bodily harm or the patient requiring further treatment to prevent an injury, the government said in the bill.

A "responsible" professional within each healthcare provider must also provide an annual report on the duty of candour “as soon as reasonably practical after the end of the financial year”, it said.

The government was working on “detailed guidance that will guide a range of organisations” on the duty of candour if it was made law, it said. “There will also be national training and implementation resources developed,” a spokesperson told C+D.

The implications of the guidance for pharmacists would “differ according to their responsibilities”, it added.

Regulation, not legislation

Mr Barclay said CPS was “obviously supportive” of the duty of candour requirements, but reaffirmed the organisation’s view that there were “fundamental advantages” to having the requirements enforced by the GPhC rather than set in law.

CPS used its response to a government consultation on the bill in December to argue that regulation was "far easier to modify and should therefore cost less time and money”. 

The Care Quality Commission introduced a duty of candour for all NHS organisations in November. Although this does not apply directly to the sector, pharmacy organisations warned last year that the government would struggle to apply similar regulations to pharmacists until dispensing errors were decriminalised.

The GPhC included a duty if candour in its updated requirements for registrants published last year.

Would you be more likely to report inadvertent errors if they were decriminalised? 

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