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Pharmacists not 'off the hook' with dispensing error defence

Noel Wardle: A jury will have to decide whether a pharmacist’s conduct falls within the defence
Noel Wardle: A jury will have to decide whether a pharmacist’s conduct falls within the defence

Pharmacists should not assume they are “off the hook” when the defence from criminal prosecution for inadvertent dispensing errors becomes law, a pharmacy lawyer has warned.

There is still a “significant risk” that pharmacists who commit an inadvertent dispensing error will be investigated for a crime and have to face a jury, despite the legal defence coming into force in April, Noel Wardle, partner at Charles Russell Speechlys LLP, has warned.

The “complex” statutory defence means “pharmacists will have to jump over at least four, if not more, hurdles in order to fall within the defence”, Mr Wardle told C+D at the law firm’s annual conference in London last week (March 15).

At the conference, pharmacy lawyers gave examples of some of the facts pharmacists will have to prove if they want to use the new legal defence, including demonstrating “the product was sold or supplied in pursuance of a prescription or directions given by a relevant prescriber or patient group direction”, or in the case of emergency supplies, “a prescription-only medicine was sold or supplied in circumstances where there was an immediate need for it”.

“It will be for the jury to decide whether the pharmacist’s conduct falls within each part of the statutory defence,” Mr Wardle said in response. “This is definitely not the time for pharmacists to drop their guard in relation to practice.”

Manslaughter conviction “threat remains”

In February, health and social care secretary Jeremy Hunt launched a “rapid policy review into the issues pertaining to gross negligence manslaughter in healthcare” following the case of Dr Bawa-Garba, who was found guilty of manslaughter by gross negligence, in relation to the death of a six-year-old boy.

While “no pharmacist has ever been convicted of manslaughter”, Mr Wardle stressed, the “threat remains” unless the Department of Health and Social Care “does something following Mr Hunt’s review”.

Watch the video below to find out why Mr Wardle believes it will be a while before healthcare professionals see the decriminalisation of manslaughter errors.


Will the incoming legal defence make you more likely to report inadvertent dispensing errors in your pharmacy?
Not sure
Total votes: 121
Will the incoming legal defence make you more likely to report inadvertent dispensing errors in your pharmacy?

Told Youso, Pharmaceutical Adviser

Or is Noel worried that, given the possibilty of meeting the new defence in court, the CPS will be less likely to take a case to court and thus his business will go the way of pharmacy? Downhill. 

Ian Kemp, Community pharmacist

Very witty Told Youso, but exact opposite to likely outcome. Previously precedent was set by Elizabeth Lee case [ remember she was EVENTUALLY cleared ] but now CPS will be desperate to find out how the courts view this new 'defence' and so Noel might soon find himself defending some poor soul who's been fed to the wolves. I suspect Noel is correct that the poor pharmacist concerned will have to jump through more hoops than Elizabeth Lee but Told Youso sounds like they will be on the side of the prosecution not the defence. DoH might say that failure to follow SOP will not automatically invalidate the defence but courts could easily take a different view. I say again, pharmacists may actually be worse off with this new defence than they were before.

Dodo pharmacist, Community pharmacist

There is absolutely no point of this “defence” . Unless we get genuine decriminalisation I will not be reporting any dispensing errors so that I do not incriminate myself. I strongly advise all pharmacists to do the same.

Locum Pharmacist, Locum pharmacist

The recent case involving Dr Bawa-Garba makes it even more necessary for us to continue to push for decriminalization rather than become complacent. The court and media found Dr Bawa-Garba negligent but her peers in the GMC tribunal and, it seems, some other health professionals felt she did not deserve a criminal record and should be allowed to continue to practice.

In my opinion, dispensing errors ought to be handled by our regulator, ideally once we have competent, independent individuals working at the GPhC. Alternatively, perhaps our GPhC fees could go to towards forming a GPhC tribunal consisting of individuals that are capable of taking into account factors contributing towards errors and will take a real world view of dispensing errors.

Locum Pharmacist, Locum pharmacist

Really makes you wonder what is the point of this 'defence'. To appease/mislead pharmacists so we no longer pursue decriminalization which we were promised many years ago? 

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