Criminalisation of dispensing errors continues to haunt pharmacy

The suspended prison sentence passed on Northern Ireland pharmacist Martin White is deeply troubling for the pharmacy profession (
Pharmaceutical Journal online, 22 December 2016).

White was convicted under section 64 of the Medicines Act 1968 for supplying a product that was not of the nature or quality prescribed — propranolol instead of prednisolone.

It is obvious that anyone — whether a healthcare professional or not — who deliberately harms another person should be punished. But it is equally obvious that healthcare professionals do their best to help patients, not harm them. There is no good reason why pharmacists who make dispensing errors should be singled out as criminals. Pharmacists are as prone to human error as anyone else. However, except when grossly negligent errors cause death, no other healthcare professionals are prosecuted for their mistakes.

The wording of section 64 of the Medicines Act 1968 was borrowed from food legislation enacted in the post-war years, designed to punish people who deliberately adulterated food. It was a time when many medicines would have been extemporaneously prepared rather than mass-produced as they are today. There is no justification for retaining Medicines Act offences in the 21st century when deliberate adulteration can be treated as an offence under other legislation, and all healthcare professions are governed by independent regulators with statutory powers.

As for White’s sentence, it is just the latest example of how prosecutors and judges often fail to understand or appreciate that the offence is out of date, and that pharmacists who make mistakes are not wicked. When Elizabeth Lee, a pharmacist based in England, made exactly the same error as Martin White, the Court of Appeal said in 2010 (
Pharmaceutical Journal 26 May 2010;284:521) that a suspended prison sentence was manifestly excessive, and substituted a £300 fine.

Since then, implementation of the government’s promise to decriminalise dispensing errors (
Pharmaceutical Journal online, 26 January 2016) has been repeatedly delayed. Although the Crown Prosecution Service in England has introduced guidelines (
Pharmaceutical Journal online, 21 June 2010) aimed at limiting the prosecution of pharmacists for dispensing errors, the message has not got through.

Pharmacists may be justifiably alarmed that one of their own has been convicted because of a dispensing error. Prosecuting pharmacists who make mistakes does not enhance patient safety.

However, the introduction of a statutory defence to section 64 of the Medicines Act will not remove the fear of prosecution altogether. Prosecuting authorities across the UK should not be permitted to bring cases without consulting the General Pharmaceutical Council (in Britain) or the Pharmaceutical Society of Northern Ireland. These regulators have a duty to protect the health and safety of members of the public. They will usually be able to advise prosecutors that in a case of sufficient seriousness, prosecution is disproportionate because fitness-to-practise proceedings can be brought — and decided by a tribunal with appropriate expertise.

Noel Wardle

Partner

Charles Russell Speechlys LLP