The Department of Health (DH) must clarify its plans to decriminalise dispensing errors, a healthcare lawyer has said.
As part of a legal defence from prosecution for inadvertent dispensing errors, which opened for consultation in February, the DH has proposed that pharmacy teams must show they had acted “in the course of [their] profession” and “promptly” notified patients of an error when necessary.
Noel Wardle, a partner at law firm Charles Russell Speechlys, said the vagueness of these terms “created uncertainty” and pharmacists should use the consultation to demand greater clarity.
“I don’t know what ‘not acting in the course of your profession’ means. Does it mean a situation where you could have taken more care? We don’t know,” he told a legal conference last week (April 15).
Mr Wardle said he was also unsure how to define if a patient had been notified “promptly”, and how a pharmacist should decide whether a patient did not need to be notified of an error.
In its consultation document, the DH recognised that it had not defined what it meant for a pharmacist or their staff to "act in the course of [their] profession", and said it would be the responsibility of a prosecutor to prove this had not been the case if an error was made. Pharmacists and staff would need to provide “sufficient evidence” to show they had acted professionally, it stressed.
The DH also did not define how to report an error “promptly”, and said the “circumstances of each case have to be examined on its own merits”.
Although the proposed legal defence was “better than nothing”, Mr Wardle stressed it could “still leave pharmacists open to prosecution”. “In some ways this increases uncertainty rather than reduces it,” he stressed.
Pharmacists have until May 14 to respond to the consultation online. Ken Jarrold, chair of the programme board overseeing the consultation, told C+D in February that the consultation was an opportunity to ensure the changes did not have any unintended consequences, before they came into effect next year.