Dispensing error law needs to be challenged
The unfortunate case of Martin White (The Pharmaceutical Journal online, 22 December 2016) certainly has features in common with Elizabeth Lee. I remember her case particularly well because I was her solicitor.
It used to be accepted wisdom that a pharmacist who put the wrong label on a product had committed an offence under the Medicines Act 1968 section 85(5). This section relates to an offence of mislabelling by a person “in the course of a business carried on by him”. I did not accept that this applied to the individual pharmacist and, in 2010, the barrister I instructed (Orlando Pownall QC) persuaded the Court of Appeal that Ms Lee had not committed this offence. In short, the reason was that she had not been running the relevant pharmacy business. The other offence she had been charged with, under section 64(1), had been left to lie on file.
It is the accepted wisdom that a pharmacist who dispenses the wrong product commits an offence under the Medicines Act section 64(1). Lee has a conviction under this section, but not because the Court made a decision on the issue, but because she could not face a further trial. Martin White also has a conviction under this section. The question remains whether the accepted wisdom is correct.
The supply of a non-general sale medicines on prescription at a pharmacy must be by “a person lawfully conducting a retail pharmacy business” (section 52). A “person” in this context can be the individual pharmacist, a partnership or more normally nowadays by a limited company such as Tesco (section 69 etc).
So section 64(1) reads in this context: “No person shall, to the prejudice of the [patient], supply any medicinal product which is not of the nature or quality specified in the prescription.”
Who may supply? The answer, according to section 52, is a person lawfully conducting a retail pharmacy business. In the case of Lee this was Tesco. I do not accept it is the individual pharmacist unless he or she is the one running the business.
It is time for the accepted wisdom on section 64(1) to be challenged. Perhaps White would like to discuss the above with his legal advisers.
St Annes on Sea
Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2017.20202271
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