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Criminal threat stays as CPS fails to deliver on dispensing errors

The long-awaited guidance on the prosecution of dispensing errors released this week has fallen short of expectation and “changed nothing”, legal experts have warned.

The Crown Prosecution Service (CPS) guidance on prosecutions under the Medicines Act, first promised last June, had been hoped to shield pharmacists from criminal prosecution until a full review of the Act could be completed.

But Charles Russell solicitor David Reissner warned the guidance was self-justifying and did not lift the threat of conviction.

“There is a lot of self-justification here… and when you get to what ought to be the meat, actually there is nothing there… it isn’t even a restatement of their position, it’s a reminder of things [prosecutors] should be taking into account anyway,” he said.

“My view is the CPS was hoping to stall, but has come under political pressure and the CPS has aimed to fob off the politicians [with guidance],” Mr Reissner added.

Hilary D’Cruz, partner at Ansons Solicitors, agreed the guidance was unlikely to protect pharmacists who make a dispensing error from criminal prosecution.

“The guidance does not create any legally enforceable rights or override the current law. It may assist with clarity, but the fact remains human dispensing errors can be penalised unless the limited defences apply,” Ms D’Cruz warned.

However, the pharmacists could use the guidance to update SOPs in line with prosecution criteria, allowing them to minimise their risk, she added.

Pharmacy minister Earl Howe said the DH was exploring legislative options to protect pharmacists from prosecution, such as the review of the Medicines Act, “as a matter of priority”.

“We firmly believe a legislative framework for dispensing is needed that will support a learning culture as opposed to a punitive one,” he said.

More than 12,000 pharmacists signed a petition calling for the decriminalisation of dispensing errors following the conviction of Elizabeth Lee, whose sentence in 2009 for a single dispensing error was overturned last month at the Court of Appeal.

Industry view

“The guidance is a step in the right direction, but what we are pressing for is a change in the law. And the Department of Health is listening.”

Jeremy Holmes, chief executive and registrar, RSPGB

“The CPS guidance is a welcome step forward to safeguard the public interest, and to achieve a consistent approach to prosecutions. We still await a change to the law so that the correct balance is embedded for the long term.”

Nanette Kerr, director of pharmacy, NPA

“Although there is strong opposition to the current law, the guidance could be used by pharmacists as a useful tool in the interim. Pharmacists should familiarise themselves with the guidance… so they can demonstrate they have taken all reasonable steps to minimise the risk of dispensing errors.”

Hilary D’Cruz, partner, Ansons Solicitors

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