Criminal liability for registered pharmacy technicians making a dispensing error
In the event that a death involves a dispensing error, the police will usually investigate the incident as if it were gross negligence manslaughter. Gross negligence is rarely found; much more likely is that a simple human error has occurred.
A worrying trend has emerged where following a death and where gross negligence has not been a factor, the police will prosecute a pharmacist or a technician instead for offences committed under the Medicines Act 1968.
One example of such a case recently occurred where even though the coroner at the inquest concluded that the error had not lead to the patient's death, the police charged a pharmacist and a pharmacy technician under Section 64 of the Medicines Act 1968.
The prosecution's case was that the technician had made the error initially and the pharmacist had failed to complete the final check accurately.
The employer claimed that because its Standard Operating Procedures (SOPs) for dispensing had been breached, it could not be held accountable for the wrong supply. The prosecution agreed and this left both the pharmacist and the technician in the firing line.
Lawyers defending argued that neither the technician nor the pharmacist had any knowledge that the medication supplied was incorrect – the act was not deliberate. The lawyer representing the technician argued that her role was to merely prepare the prescription she received and it was then the responsibility of the pharmacist to check the accuracy.
However, the prosecution argued that Section 64 did not require any knowledge of a mistake; it also argued that although it was not known who handed the medicine to the patient, this was immaterial. It acknowledged that although the technician was not in such a responsible position as the pharmacist, she nevertheless had to be held accountable for her actions.
The court held that both the pharmacist and technician had a case to answer. In mitigation, it was stated that we all make mistakes sometimes. Both individuals had exemplary careers and were of excellent character. Both were dealing with a backlog of work at the time the error was made, working under pressure and were stressed.
The court recognised that neither individual had ever denied their involvement in the incident. It decided that the pharmacist and technician would be prosecuted and fined £2,065.00 and £765.00 respectively.
- The employer avoided any blame by simply pointing at its SOPs. This argument puts all pharmacists and technicians into a very vulnerable position in terms of criminal exposure.
- The argument that it is solely the pharmacist that should be held responsible is no longer a viable one. The courts will hold a technician to be criminally liable for their actions. Both the pharmacist and the technician are likely to end up with a criminal record; the different level of fines will reflect the difference in salaries.
- More time spent on trying to establish the extent to which the conditions in the pharmacy may have contributed to the error may have made it possible to draw the employer into the proceedings. This could have been to both the advantage of the pharmacist and the pharmacy technician.
- Drawing the employer into the proceedings is a tactic that employers in general or their insurers may not want to pursue. You and not your employer or their insurer must be controlling the defence. A pharmacist or technician should rely upon insurance that is not in any way connected to their employer – nor their employer's insurer.
- As an employee, you will be legally entitled to a rest break and you must take one.
The Pharmacy Insurance Agency Limited is registered in England and Wales under company number 2591975
It is authorised and regulated by the Financial Conduct Authority (Register No 307063)