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A manslaughter conviction to send shivers down the spine

"Not all negligent acts will be treated as manslaughter if a patient dies."

The manslaughter conviction of Honey Rose, a Boots locum, should send shivers down the spine of all healthcare professionals.

Ms Rose is an optometrist who failed to spot during a routine eye test that eight-year-old Vincent Barker had a condition that would lead to his death.

Murder involves intentional killing. If someone is grossly negligent and death results, this is manslaughter. A number of doctors – mostly hospital doctors – have been convicted of manslaughter. In most cases, they have received suspended prison sentences, but in 2013, a surgeon was given an immediate two-and-a-half year prison sentence.

Ms Rose – who will be sentenced at Ipswich Crown Court next month – was the first optometrist to be charged with manslaughter. To the best of my knowledge, only one pharmacist has faced trial on a manslaughter charge in modern times.

The case involved the supply of 100mg of morphine sulphate tablets (MST), when 10mg had been prescribed, and the pharmacist was acquitted. But present-day attitudes to healthcare professionals mean that it seems inevitable that a pharmacist will be charged with manslaughter at some point in the future.

Not all negligence is manslaughter

It is important to bear in mind that not all negligent acts will be treated as manslaughter if a patient dies. Firstly, the negligence must actually cause or be a contributory factor in the patient’s death. Secondly, the negligence must be “gross”. In other words, it must be so bad in all the circumstances that a jury would regard it as criminal.

A selection error or a labelling mistake would probably not be gross negligence. However, if a pharmacist fails to consult a patient’s summary care record and supplies penicillin to a patient who is allergic to it, there is a real risk of being charged with manslaughter.

The same might apply in a case involving a lack of candour – for example, if a pharmacist realises that an error has been made, but fails to inform the patient or take adequate action to prevent harm being caused.

The risk of a manslaughter prosecution can be reduced if healthcare professionals acknowledge errors, and act promptly if there is still time to minimise harm. The Crown Prosecution Service should keep in mind that everyone makes mistakes, and that healthcare professionals are doing their best to help, not hurt, patients.

I believe it is wrong to send healthcare professionals to prison for manslaughter. Regulators such as the General Pharmaceutical Council have powers to prevent unsafe registrants from practising, and that is surely sufficient. 

David Reissner is senior healthcare partner at law firm Charles Russell Speechlys ([email protected]).

5 Comments

Anonymous Anonymous, Information Technology

Great so now I have to run the gauntlet of prison for my £18 per hour McJob! Think I'll call up Pizza Hut and ask if they have any jobs for an ex-pharmacist - pay probably wouldn't be that much worse and the conditions would certainly be better!

N O, Pharmaceutical Adviser

This looks more like RPS & HSCIC together trying to force community Pharmacists to sign up for the SCR scheme, and the Solicitors can then make their life out of the problems created by the GPs. For how long will this continue ??? Why not punish people who issued a script than those who dispensed it ??? If SCR becomes a norm then all we will be doing is check the SCR everytime a script is to be clinically checked (walk-in or not) Don't even start me on the hospital/ OOH scripts, where you will never find the prescriber to answer the query !!!

Chandra Nathwani, Community pharmacist

There are many cases similar to the penicillin example above that we come across daily where the needs to access SCR cannot be a process before dispensing a medicine. A qualified prescriber would have had to carry out this check BEFORE  writing up a script. Yesterday I came across a patient who was prescribed   Mirabegron which  should not be given to patients with uncontrolled hypertension. Are we then expected to measure the patients BP or check SCR before dispensing this medicine? For patients on Lithium, I have yet to see a lithium monitoring booklet with them with blood test results in it! 

David Reissner, Senior Management

There's more detail in my article on SCR in C&D 26 April. The point about penicilin is not my personal view - I am not a pharmacist: I was referring to the advice given by the RPS about when to consult the SCR.

Paul Brett, Community pharmacist

"However, if a pharmacist fails to consult a patient’s summary care record and supplies penicillin to a patient who is allergic to it, there is a real risk of being charged with manslaughter."

Wouldn't this constitute "routine dispensing" and therefore not warrant the use of SCR?

From the PJ earlier this year:

"Permission to view is based on clinical need, in a community pharmacy this would not be for routine dispensing" (How to use the summary care record in community pharmacy The Pharmaceutical Journal26 APR 2016).

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