A cautionary development
In 2007, a dispensing error made in a supermarket pharmacy occurred when propranolol was dispensed instead of prednisolone to an elderly lady who was terminally ill with cancer.
The high dose propranolol caused a severe drop in blood pressure; the lady collapsed and was admitted to hospital. The hospital discovered the error and she quickly recovered from the episode. She was kept in the hospital because her breathing difficulties caused by the cancer were quite severe.
Sadly, she died three days later – the police were called and the locum pharmacist involved was arrested, taken to the police station, asked whether she intended to murder the elderly lady, fingerprinted, DNA tested, had her house searched and was finally released after eight hours of questioning.
Although the coroner established that the death of the elderly lady was unconnected to the dispensing error, the police decided to prosecute the pharmacist under the Medicines Act – Under section 64.1, which is to do with the wrong product being supplied, and under section 85.5 – a labelling offence. These offences attract a sentence of up to two years imprisonment. The pharmacist was tried at the Old Bailey and was given a suspended prison sentence for a contravention of section 85.5 – a labelling offence. Through reliance on her professional indemnity insurance scheme, she was then able to return to the Royal Court of Appeal almost a year later, where her sentence was overturned and she received a fine instead.
This event caused much concern and protest from pharmacy organisations – how could a healthcare professional make an accidental mistake and end up with a prison sentence?
The Crown Prosecution Service (CPS) was asked to look again at its guidance to police so as to avoid such extreme reactions in the future – surely the right way of dealing with dispensing errors was through the pharmacy regulator and not the criminal process.
The CPS guidance, when it eventually came, did not provide the relief that the profession was seeking.
Additionally, the CPS guidance to the police explained that pharmacists could avoid being prosecuted in the future by using a 'due diligence defence' if they could show that the dispensing error had occurred due to the mistake of another person – a pharmacy technician.
The guidance states;
The defence of due diligence is set out in section 121 (of the Medicines Act). It deals with contraventions that were committed by a second person. It provides that where a contravention of the (Medicines) Act by one person (A) is as a result of an act or default of another person (B), B may be prosecuted for the offence, irrespective of whether proceedings are brought against person A. This covers the situation where a pharmacy technician prepares a prescription for the pharmacist to authorise, or where any other person has been involved in the sale and dispensing of a medicinal product.
The problem with this guidance is that in future, the lawyers defending pharmacists could use this argument to protect their clients. This will likely expose pharmacy technicians to the increased possibility of criminal prosecution.
- Currently pharmacy professionals can face criminal prosecution for committing a dispensing error – the sanction for which may be up to two years imprisonment.
- Guidance to the police from the Crown Prosecution Service which describes due diligence defence will expose pharmacy technicians to increased risk of prosecution if they have committed a dispensing error.
- Pharmacy technicians must be able to defend themselves in such an eventuality, even if this means taking their case to the Royal Court of Appeal.
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