Limits of trust?

It is now widely recognised that mistakes committed while providing healthcare services do occur and that they can lead to the harm of patients.

When mistakes occur in the community pharmacy setting it is usually relatively easy to establish the causes and then to apportion responsibility. However, the situation is often much more complex in the hospital pharmacy setting; moreover, checking procedures are different. There is a much greater reliance on policies and procedures, which are usually provided by the trust, and more often than not, several pharmacists of varying levels of seniority are involved. There is a much greater proximity and involvement of a whole range of other members of the healthcare team such as technicians, nurses and doctors. As a consequence, in the experience of the PDA, when errors occur in hospital pharmacy, the job of protecting the interests of the individual pharmacist becomes that much more difficult. What can happen is that the individuals and organisations mentioned above, who could all have been involved in some way, may wish to ensure primarily that they are extracted from any potential firing line as quickly as possible.

Fortunately, the vast majority of errors do little if any harm, many do not even surface. However, it is inevitable that some result in very serious consequences and are even linked to a fatality. Recent cases dealt with by the PDA have shown us that in the hospital setting the pharmacists most likely to be in the fring line of errors are the more recently qualified, or those working in less than ideal conditions. In some cases they had not been provided with the appropriate training to undertake their particular role, or have insufficient time to complete their tasks; in others they have had too little supervision. What are the implications if it happens and where can help be found?

In the hospital setting, even though a pharmacist may not be directly responsible for a serious error, there will usually be an investigation; in the event of a fatality the pharmacist is sometimes called to give evidence at a coroner’s inquest. Depending on the seriousness, when things go wrong, there is also the possibility of civil proceedings (i.e. being sued), professional disciplinary action (RPSGB), criminal proceedings and/or employment disciplinary proceedings.

The PDA has seen numerous members involved in some very difficult situations in recent months. In some cases this has occurred even though the coroner’s verdict has absolved them of causing the death.

When things go wrong some pharmacists naturally look to the trust employing them or to their senior line manager for guidance and assistance; often this will lead them to the trust’s solicitor.

So what’s wrong with that?

Such an offer may seem very attractive to pharmacists who have ended up in situations involving an error or other form of conflict. After all, their managers could be trusted and excellent pharmacists; they could be well known in hospital pharmacy circles because of articles they have written or committees on to which they have been voted. In our experience of defending pharmacists, we have formed the view that a reliance on offers of support from the trust, or senior managers appointed by the trust, can lead to more problems.

The reason is that the managers have probably little or no experience of litigation and the complexities of handling a serious situation potentially involving many conflicts with both intra- and interdisciplinary teams.

Even in cases where they possibly have some experience of these matters, such experience will merely be incidental to their regular job, e.g. of being a manager of a pharmacy department or other senior hospital role. Additionally, they will have even less experience of dealing with the new and highly complex nature of ‘modern’ pharmacy regulation at the hands of one of the RPSGB’s several new statutory committees, let alone know how to handle civil litigation or potential criminal prosecutions involving the Medicines Act, Misuse of Drugs Act or the new Health Act.

The PDA has encountered situations where despite their good intentions, this lack of experience, has detrimentally affected the interests of the pharmacists in question. As far as a reliance on the trust to defend the interests of pharmacists is concerned, imagine if the working conditions, staffing levels or policies provided by the trust caused or contributed to an error. In this situation, pharmacists will need to defend themselves by drawing attention to these shortcomings. Under these circumstances, imagine the difficulties that would emerge for pharmacists if their trust lawyers were actually helping them conduct their defence.

What these pharmacists actually need is someone who will look exclusively after their personal interest; this is often a distinctly different interest from that of the trust and even that of the senior line manager.

Equally, if you are the senior line manager in this situation, then you will want to ensure that you, too, are receiving advice that is independent of the trust or any other parties. It is important that all pharmacists recognise this difference because their professional futures may depend on it. The trust solicitor is paid by the trust to look after (primarily) the trust. Inevitably, the pharmacist’s interests will be deemed to be secondary to those of the trust by the trust solicitor. This is not just a theoretical concern, but a situation seen routinely by the PDA.

Pinning the blame

Another difficulty is the situation where it is not clear who made the error. A pharmacist can stand accused of an error made by a colleague – be this another pharmacist or other member of the hospital team. Clearly, the trust solicitor would have a decision to make about the strategy to be taken in the defence, especially if the trust was implicated as a result of the conditions or the processes it allowed to prevail. This decision may well be detrimental to the interests of all the pharmacists involved in the situation, whatever their level of seniority. The pharmacist’s interests are possibly at further risk if all the other parties potentially involved have their own independent defence, but the pharmacist was relying solely on the support of the trust solicitor.

It is almost a given that doctors and nurses, for example, will always be represented by their own counsel because they are members of their own respective defence associations.

Further considerations

Once a serious incident has occurred, new and increasingly complex implications for the relationship between an employee and employer can emerge. Examples include employment disciplinary proceedings that are being taken against a relatively junior pharmacist by a senior pharmacist line manager who arguably, can well have been implicated in a particular incident and can even have had a theoretical case to answer.

In addition to this, the new RPSGB fitness-to-practice regulations place significant pressures on employers to report pharmacists they consider to have competency issues to the RPSGB so that an investigation into their fitness-to-practice can be instigated.

Police involvement

In the more serious cases including a fatality, pharmacists, including a number of PDA members every year, have found themselves being arrested and investigated by the police. Manslaughter proceedings are usually instigated; at the very least, if these fail, then the pharmacists are prosecuted instead under the Medicines Act and end up with a criminal record. The PDA has been involved in numerous situations where it has defended pharmacists in these situations; however, we are also aware of cases (where we have not been directly involved), where lawyers retained by the employer simultaneously acted on behalf of both the pharmacist AND the employer; and in at least one case, the technician also. It is interesting to note that the net result was that the lawyers persuaded the technician and the pharmacist to plead guilty, and interestingly, the employer was totally absolved!

Union involvement

The issue of compromised representation and defence may also apply to a large union (one that does not exclusively deal with pharmacists).

Whilst large unions undoubtedly have significant influence in the broader NHS and have a lot of expertise particularly when it comes to pay and conditions, they may have very little detailed knowledge of pharmacy specifically and may have limitations when an expert defence in a serious professional conflict is required. We have seen well-meaning union representatives with no detailed knowledge or experience of pharmacy matters seeking to assist pharmacists in dispute situations and this has been to the detriment of the pharmacist.

The union may decide to ask a local pharmacist, perhaps a union official to get involved, this may be a senior work colleague. We have already demonstrated earlier in this feature how this could be to the detriment of the pharmacist in question.

Even if it decides to instruct an independent solicitor, the pharmacist could still be disadvantaged because although many law firms will take on criminal work and most are fully competent, very few have any knowledge of pharmacy beyond having a prescription dispensed.

Dealing with the media

Often, in the event of a drug-related death at the hospital, the national media (usually the Sunday papers) get involved. They make contact with the trust and it is usually their intention to secure information that seeks to describe an uncaring health service that employs incompetent staff. In these situations it is not unusual for them to name and shame individuals.

Often, the press do not appreciate the whole picture and often ask the trust’s press office one-dimensional questions such as: “What disciplinary action has been taken against the pharmacist?”.

The trust’s spokesperson may prepare a reply saying there has been none, but fails to state this was because the inquest had established that the pharmacist’s involvement was not in any way linked to the cause of death. It may be that the pharmacist involved is sent a copy of the draft reply at 5pm on a Friday evening. Publication will be damaging and extremely upsetting for the pharmacist. A published apology or subsequent retraction by the paper will be of little consolation.

The PDA has experience of dealing with situations where the media was managed effectively and the naming of the pharmacist was successfully avoided. The Association knows that pharmacists would find it extremely difficult to handle this kind of problem and get support at that time of the week and at such short notice.

Recent conflict situations

• Following the death of a patient, pharmacist A was summoned to a Coroner’s inquest. In the PDA’s opinion, he was potentially exposed to manslaughter proceedings and because of this, senior counsel was retained to represent his interests and to ensure that the Coroner also considered the ‘wider environmental picture’ within the hospital and the Trust. The Trust pressurised the pharmacist to abandon the use of his own defence and to use instead, the Trust’s lawyers – which he resisted. The outcome was that the Coroner criticised the wider healthcare team, the Trust and various hospital departments, however, pharmacist A was absolved and did not face any criminal charges nor any other form of disciplinary sanction.
• Following a serious injury to a patient following a medication error and at the request of the Trust, pharmacist B wrote a report about what happened. The pharmacist did so without seeking independent legal advice. When the police ultimately became involved they were handed the written report which now severely prejudiced her. Eventually she involved the PDA, nevertheless, she spent three anxious months and endured a police interrogation before it was eventually decided that charges would not be pressed.
• Pharmacist C was involved in an acrimonious dispute with his Trust and eventually with the support of his local lawyer, a compromise agreement was signed by both sides which resulted in a financial settlement being paid to the pharmacist in lieu of his resignation. However, two months later he was contacted by the RPSGB and told that following a report by his old Trust that his fitness to practice may be impaired he was now to be investigated. His lawyer, unfamiliar with the nuances of pharmacy had negotiated a good financial settlement, but had failed to ensure that the compromise agreement included a clause which would prevent the possibility of any subsequent bitter recrimination. Eventually after a lengthy investigation, and now with the support of the PDA, there were to be no professional disciplinary sanctions laid against him.

Reviewing your defence arrangements

In the fast-paced, multi-professional healthcare environment in which most pharmacists currently fnd themselves working, professional conflicts are becoming, sadly, a more frequent occupational hazard.

The implications of something going wrong can be far reaching and may represent some very serious career-threatening implications for those pharmacists unfortunate enough to have become involved. Doctors and nurses have recognised this a long time ago and consequently are almost universally members of their respective defence associations because they see this as a necessary adjunct to their practice.

In a few short years, well over 4,000 pharmacists working in hospital have chosen to be members of the PDA. We hope that this feature will assist those not yet in PDA membership to refect and review their current defence provisions.