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Lawyer calls for ‘clarity’ over decriminalisation changes

The vague terms used by the Department of Health have “created uncertainty”, says Noel Wardle

The Department of Health must provide more detail about its planned defence from prosecution for inadvertent dispensing errors, says healthcare lawyer Noel Wardle

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.


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What do you make of this story?

Pavol Kosa, Locum pharmacist

Unintentional dispensing errors should be decriminalised unless proven serious incompetence or misconduct with serious patient's harm. Well since 2006 I have not met pharmacist with intention to harm patient. Am positive there are unintentional mistakes/errors only which we all are trying to reduce to minimum except from some area managers, incompetent in their jobs bullying pharmacists with other staff. What About compulsory twomonths training for those without any pharmaceutical experience before position can be taken? I feel it would help sector if done as rule from GPhC.

Really? Wow, Superintendent Pharmacist

I for one have been bemused by the RPS position on this as me it is the furthest place from that possible. What the RPS have been saying, that is criminal. If this is allowed to go through as it is, the subject will be put even further down the Q and I cannot see it happening in my career, and I potentially have 40 years left of doing this! Furthermore, the C+D has been complicit in this false reporting. Editor; I would ask that henceforth you make an editorial decision to refrain from describing these current DH proposals as decriminalisation, as they are clearly not. I can make some clearer analogies about this if you would like me to, but its clearly not decriminalisation.

Gerry Diamond, Primary care pharmacist

Well not surprised that it's still dragging on after all the big fuss was made on these pages of the C&D by RPS that it was all in the bag. Well it's not in the bag and this time next year the dispensing error debacle will still be grinding on with the odd eureka shriek from some delusional bod at the RPS.

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