Chairman's letter - Why we have challenged the precedents of the past

Some have even told their pharmacists that in the event that something goes wrong, the Trust can be relied upon to provide legal defence for them.

What use is that I ask if it may not focus purely on the individual's interests?

There is no better case to demonstrate why pharmacists should be cautious about this employer message and that they should instead join an effective representative organisation that has a demonstrable track record in defending pharmacists in serious situations, than the case of Elizabeth Lee.

As many pharmacists will now know, we have managed to successfully appeal Elizabeth Lee's initial conviction and custodial sentence. It is important for all pharmacists to understand why this prosecution ever happened at all and why we at the PDA, with Elizabeth's permission were determined to use her case to challenge the status quo.

Since the late 1990s a number of high profile cases emerged where pharmacists that had been involved in dispensing errors, linked to the death of a patient but where gross negligence manslaughter had been ruled out, were prosecuted for offences under the 1968 Medicines Act. Such cases included what have become known as the 'peppermint water case' and more recently the 'Prestatyn case'.

No other healthcare professions who make errors at work face further criminal charges once gross negligence manslaughter has been excluded. The relevant practitioner is referred to their respective regulator to face professional proceedings. Not so in pharmacy, where the Police do, inequitably, pursue criminal proceedings for Medicines Act offences.

In addition, the prosecution in both these cases had been focused specifically on the individual practitioner and no significant attention was paid to the systems nor the working environments that they were required to work under. The person in the dock was a pharmacist, a pre-reg and even the technician - in none of these cases was it senior management or the employer.

We have always believed that the Medicines Act was never meant to punish individual pharmacists in this way and that its interpretation needed to be challenged.

The strategy we pursued in the Elizabeth Lee case is described on page 8, but this plan was only developed after lengthy brainstorming meetings where the legal, practice and pharmacy political considerations were all distilled many times over before we were ready. The plan did not just involve our appearance at the Court of Appeal, but required the garnering of support from within pharmacy, from other healthcare professions, kickstarting the debate about police protocols at parliamentary level and in government - a process that took more than two years. It was necessary to research the detail of the Medicines Act and its origins and so we went as far as finding a retired legal specialist who advised the government on the original construction of the 1968 Medicines Act in the mid 1960s.

The fact that this strategy was vindicated was not only the result, in terms of overturning the original conviction, but is also referred to in the very first line of the extensive published written judgement given by the three appeal court judges where they say that we; "raised novel [legal] questions on the construction of the Medicines Act 1968."

(Full text of appeal court judgement at: www.the-pda.org/judgement).

"But so what?" You might say - would not that be expected of any legal team supporting pharmacists? Well no... actually, it did not happen when the pharmacists, the pre-reg and the technician were prosecuted in the 'peppermint water' and the 'Prestatyn' cases and there was no successful appeal.

And herein lies my point - the case of Elizabeth Lee was handled in an entirely different way. It did create important legal precedents which will reduce the risk of prosecution for pharmacists in the future. However, the legal clarification that it produced, may well increase the risk of prosecution instead for those operating a pharmacy - the Trust itself.

Consequently, would a Trust funding legal representation for its employee ever contemplate mounting such a defence? This result occurred because the philosophy of the PDA is focused on the interests of the individual pharmacist and not that of the employer. Had we been concerned primarily with employer interests then we may not have spent more than two years in extensive preparations and significant sums in defending Elizabeth and we would not have set important precedents to benefit pharmacists - but not employers. Had the employer's interests been in primary focus then Elizabeth may have simply been advised to throw in the towel so that lawyers could then enthusiastically offer arguments in mitigation.

The case of Elizabeth Lee offers the profession many object lessons on safe practice; the importance of rest breaks and much more. It surely also makes a much broader point and that is that the interests of the employer and senior managers are not always the same as the interests of the individual pharmacist and that these distinct interests must be recognised and handled with great care. I believe that in recent years, the profession has been herded by large employers and government to the detriment of the vast majority of pharmacists and that some representative organisations in pharmacy have given tacit approval by failing to act in support of their members. Why otherwise were the Responsible Pharmacist regulations that introduce new criminal sanctions for pharmacists not resisted? This imbalance must be addressed. Pharmacists must once more be enabled to practice with professional independence for the benefit of patients and not simply be controlled by company or NHS edicts.

As articles in this magazine will describe, the PDA continues to work passionately, expending great efforts on looking after the individual pharmacist. This is at the very core of our identity and drives us whether it be in our defence work, in how pharmacists should be treated in the workplace, or in how best to shape the future of the profession.

We ask that you support us.