PDA Responses to the GPhC’s Consultation on the indicative sanctions to be provided to the Disciplinary Committees
PDA Response relating to proposals regarding dishonesty
This is an area where the GPhC Disciplinary Committees have historically struggled in delivering a proportionate or a consistent approach and sometimes neither. There is also evidence to show that when a matter of dishonesty comes before the committee, the committee will often appear zealous in trying to find anything else that it can possibly find in relation to a pharmacists fitness to practice so that it can bolster its decision to remove a pharmacist from the register.
This would suggest that there currently appears to be a view amongst some committees that any level of dishonesty is incompatible with continued registration. This is perhaps unsurprising as dishonesty only feature in Section 14 in the Indicative Sanctions Guidance.
We wholeheartedly agree with the GPhC Council’s belief that there should not be a presumption of removal in all cases involving dishonesty. One way in which this can be addressed is to provide greater clarity and guidance to the committees in matters involving dishonesty and we note that the GPhC’s Council is placing great emphasis on this solution.
The guidance to the committees should include guidance on how to take into account the degree of dishonesty and also any aggravating or mitigating factors. The current position can be likened to executing a thief, whether guilty of petty theft of an apple or grand larceny.
We also note that when it comes to dishonesty, the committees have tended not to take into account any mitigating factors and have not been interested in looking at the wider picture; in particular the working environment and culture of the employer. Occasionally, when they have looked at the wider picture, they have taken an unrealistic view which importantly demonstrates a lack insight by the committees into the true realities of pharmacy practice. This is a worrying deficiency.
The committees have in the past been unprepared to consider the corporate encouragement of behaviours that fall short of regulatory standards which are tolerated by employers because these are behaviours that suit the profit driven culture of the organisation. One example is the targeting culture imposed by certain pharmacy employers and how this places pharmacists in near impossible situations. Sometimes pharmacists are caused to operate in dishonest or illegal ways by their employers. One example is that in the run up to Christmas of 2014, in an attempt to bolster profit, some pharmacists were told by their employer not to close their pharmacies on Sundays at the proper time in compliance with the Sunday trading legislation and that senior management would take responsibility for any discovery. This is only one example, but it demonstrates the cavalier approach being taken by certain employers to regulations that are perceived to stand in the way of profit and also belies an employer created culture where an opportunistic and selective approach is taken on which rules and regulations should be complied with.
A more familiar example is the relentless pressure being placed on pharmacists by certain employers to meet MUR targets. This pressure is intense and relentless, often in situations where meeting targets is impossible, such that there have been cases where the mental health of pharmacists has been affected and a number of suicides have been contemplated and even attempted. More frequently are situations where some pharmacists with previously unblemished careers spanning many years have appeared in front of the committees because they have falsified their MUR figures so as to relieve the pressure (often from non pharmacist managers) to meet unachievable MUR targets. In such situations, these pharmacists receive no financial benefit nor have they caused any harm to patients. They have committed such an act merely to relieve the mental pressure placed upon them and when this is discovered, they are not only dismissed by their employer, but are then removed from the register by the FtP Committee preventing them from subsequently working as a pharmacist.
When defending pharmacists in these situations, we bring these matters to the attention of the committees but they have maintained their approach regarding removal from the register because they simply see these matters as cases of dishonesty. They have either not considered the impact of ongoing pressure upon the health of pharmacists and/or have not been minded to contemplate that there is a much greater systemic problem at work which they need to address because it more properly represents a risk to the public.
In such instances, we believe that the GPhC committees have dealt inappropriately with the symptoms and not at all with the causes. In so doing they not only demonstrate a lack of insight, but are part of the problem rather than part of the solution.
PDA Response relating to proposals regarding sexual misconduct
The Councils discussion paper correctly argues that sexual misconduct covers a wide range of behaviours, in other words, such misconduct occurs in degrees. At one extreme, some forms of sexual misconduct are so serious as to require someone to be prosecuted and automatically removed from the register and we would support that approach. Logic indicates that at the other end of the spectrum, some forms of sexual misconduct are mild and that they are neither suitable for a criminal prosecution nor removal from the register.
Despite this logic, the discussion paper argues that it will strengthen it guidance to the committees. It concludes that where sexual misconduct is proven, even where no criminal conviction has been made, that removal from the register is an appropriate sanction. We would support the Councils conclusion if it stated that in such circumstances a removal from the register MAY be an appropriate sanction but not that it IS an appropriate sanction as this severely limits the proper administration of justice. Under the proposals, the Committee would make its conclusion irrespective of the circumstances of the case, and the degree to which such misconduct occurs. Furthermore, the guidance also assumes that the disciplinary committees have the requisite expertise to find that sexual misconduct has occurred in a situation where such a decision has not been first tested in the courts. In the experience of the PDA, the disciplinary committees do not have a good track record in this regard. Famously, one previous committee chairman (of the RPSGB) wanted to see the images of young men in swimming shorts (described by the police in a statement in which they justified the reasons why they would not prosecute) that had been downloaded onto a pharmacists computer, so that the Chairman could personally determine the nature and seriousness of the images. Fortunately, he was advised against doing so by the police.
Added to this, in seeking to take a blanket approach to the issue of sexual misconduct, the GPhC appears to move somewhat away from what the position of other healthcare regulators which is to consider carefully the specific circumstances of each case. Consequently, it is moving away from the need to protect the public through consistent healthcare regulation.
We therefore cannot support the Councils proposal that states that any form of sexual misconduct, even where no conviction has been made would make a removal from the register appropriate sanction. We believe instead that the wording of the guidance should be changed from IS to MAY. Secondly we believe that the committee’s should receive specific training in this area. Thirdly, they should be encouraged to take each case on its merits taking case law and the approaches taken by other healthcare regulators into account when making its decisions on sexual misconduct.
The PDA argues strongly for the requirement for each case to be taken on its merits because allegations of sexual misconduct made against pharmacists is a significant risk area in which pharmacists have found themselves unwittingly drawn into. A case study based on an amalgamation of real life situations is provided as an example.
A case study
A new, relatively inexperienced and naïve male community pharmacist has taken over the management of a pharmacy where there are a number of female workers who are older and more assertive than himself. They have worked there for many years and there is little in the way of support and guidance from senior management. The pharmacy has over a long period of time operated on an overly permissive basis with a series of short term locums, with lax management being the norm, with staff often being late or absent without permission.
In an initial attempt to become popular, the new manager enters into the team spirit of this community pharmacy, but due to inexperience he fails to see that this is a recipe for disaster. A spirit of frivolity and innocent banter occasionally descends into an environment of sexual innuendo and jokes. As a joke between themselves, some of the staff members start to explicitly describe their sexual experiences to this young pharmacist, partly in jest but it also has the effect of asserting their dominance in the workplace. Another member of staff shares her concerns over her failing marriage and he sympathises. She is much older than he and eventually a sexual relationship develops which is conducted outside of the workplace. The staff situation becomes more problematic when the young manager agrees to attend an alcohol fuelled works Christmas party.
Inappropriate themes continue to be developed in the workplace, pictures of frivolities at the Christmas party are being shared amongst the workers. The pharmacist has already erred, in so far as he has acquiesced and participated in this working environment. He believes however that no members of the public are being in any way harmed by this behaviour and he is mildly flattered by being such a focus of attention whilst at work.
The working environment then changes when a new area manager, rightly requires him to tell his staff that they need to work in a more focussed way. The staff take issue with this new approach and decide to rid themselves of this erstwhile ‘compliant manager’ by making allegations that ‘he invaded my body space when he brushed past me in the dispensary’ and staff felt ‘sexually threatened’.
Photographs of staff functions and ultimately pictures that were taken by the staff member with whom he had been having an affair as well as trails of text messages are produced so as to try and establish that the staff had been exposed to a pharmacist whose previous behaviours indicate that he has or he is likely to have committed an act of sexual misconduct. The pharmacist is suspended from the workplace, the employer refers the matter to the police and the regulator. The Police upon investigation decide that there should be no criminal prosecution, but a decision by the regulator now needs to be made.
Whilst the pharmacist may well have been previously guilty of naivety and inappropriateness, the allegations of sexual misconduct only emerged for reasons of internal workplace politics and settling of scores. In a situation like this, we believe that whilst the pharmacist had indeed erred and deserved an important lesson in professionalism and management with a warning from the regulator, his actions would not have undermined the public trust in the profession and he would not deserve to have his name removed from the register.
At a time when there is a heightened sensitivity in the media about any forms of sexual misconduct, we believe it can become all too easy to lose objectivity in the proper administration of justice. We urge the Council to issue guidance to the Committees which encourages them to consider in detail the context of any case that comes before them. They must not be given blanket guidance rendering all forms of sexual misconduct as a reason for removal from the register.
PDA Response relating to proposals regarding failures in the Duty of Candour
It is reassuring to learn that the Council is minded to support the recommendation of the Francis Report and that it will be producing a new section in the revised guidance upon the Duty of Candour. However, we are concerned that the Council will be placing all of the responsibility for a Duty of Candour upon individual pharmacists (usually employees or locums) and none upon non pharmacist employers.
The Francis Report found that in many instances the Duty of Candour had not been exercised. However, what it also found was that whilst many healthcare staff often attempt to comply with this duty, this can be supressed by the management and organisational culture of the employing organisation. Without the support of the employer or at the very least without the reassurance that there will be no internal disciplinary sanction for discussing the details of an error or other problem with patients/healthcare professionals, the Duty of Candour becomes much more difficult for healthcare staff to exercise. Consequently, placing the emphasis of the guidance on sanctions against pharmacists in the absence of placing any kind of requirements upon employers and non pharmacists will lead to unbalanced and disproportionate regulation.
The recent edition of the ‘Health Services Journal Regulation’ (5/12/2014) reflects upon the fact that NHS bodies are now having a statutory duty being placed upon them which supports and supplements the Duty of Candour being placed upon healthcare staff by their regulators. This new statutory duty criminalises NHS bodies that fail to notify errors that cause harm to patients. The adoption of this policy reflects an important Francis Report recommendation but sadly it has not found its way into community pharmacy (as yet). The main thrust of the HSJ Regulation article and indeed the more substantive Francis Report is that employer organisations and non regulated individuals have a significant role to play in the delivery of healthcare services and often have an involvement when something goes wrong, therefore they must also have a responsibility to participate in the Duty of Candour (and consequently much more besides). Currently, many individuals within a healthcare employer organisation are not regulated and therefore they are not bound by any healthcare regulatory requirements to include the Duty of Candour. This discrepancy poses a significant threat to patient safety especially when regulated healthcare staff are line managed by non regulated personnel.
This point is very apposite to consider in a community pharmacy situation where not only do such environments exist, but where there is a significant conflict between the professionally led motivations of the pharmacist and the profit and consumer/supplier driven motivations of the corporate employer.
A number of issues emerge;
- In many situations that we experience at the PDA, pharmacists are instructed by their employer not to make any contact with patients nor to make any kind of enquiries at all in the event of a dispensing error. They are told that contact will be made by the employer, but frequently, it is not. When such contact is made, it is done very belatedly and often in a style which discharges a Duty of Candour, but with a focus upon handling a civil claim in compensation and it is done by the employers lawyers. We believe that this is because the employer fears that in allowing the pharmacist to make contact with the patient their brand may be damaged or by talking with the patient or the GP, the pharmacist may draw attention to flawed systems and processes within the employers organisation. This could cause more compensation to be paid to that patient in the event of a civil liability claim being pursued and worse still (for an employer) that the employer ends up being referred to a regulator.In such situations, pharmacists find themselves in a conflict between their professional Duty of Candour and their employer’s instruction not to make contact with the patient.
- A useful remedy to this problem which would also achieve the ends described in the Francis Report would be to regulate non pharmacists and to impose upon them a Regulatory Duty of Candour (amongst many other regulatory requirements) and by placing sanctions upon non pharmacists. Such a power already exists in the Section 60 Pharmacy Order. It can be found in Schedule 1, paragraph 6, sub paragraph 2. Currently, this power is not being exercised by the GPhC and we cannot understand why. After three years of being the pharmacy regulator, surely it is now time for the GPhC to exercise this power especially since non pharmacists have a very significant influence over community pharmacy operations and there is abundant evidence to show that they often have a detrimental impact upon the professionalism of pharmacists. Whilst such a move may not be popular with the larger corporate multiples, it would however effectively deal with a major cause of dilution of the public interest in pharmacy.
Whilst we fully support the Duty of Candour in principle, we believe that requiring committees to deliver a more serious sanction to pharmacists who have committed no greater crime than finding themselves in an organisational working environment in which they are required not to exercise this duty or are discouraged from doing so, is not a balanced or rational way to deal with the problem. This problem must be addressed and we believe that this can be achieved by balancing any additional guidance with the simultaneous imposition of a Duty of Candour upon both employers and non pharmacists who are involved in pharmacy especially those in management positions.
PDA Response relating to proposals regarding the failure to raise concerns
We wholeheartedly agree that it is important that an environment and culture exists in pharmacy where individuals are supported in raising concerns about standards of care and risks to patients. However, we simply cannot see how the proposal that seeks to ensure that a pharmacist who did not raise concerns should face all available sanctions including removal will do anything to foster such an environment or culture.
Currently, the supportive environment described above largely does not exist in the community pharmacy setting. We believe that this is because of the overtly commercial environment in which many community pharmacies operate. We handle a significant number of cases on behalf of our members that show that not only are pharmacists not supported or encouraged in raising concerns, but they actually face substantial barriers erected by their employers which discourage them from being able to raise concerns.
Such as;
- Being berated by line managers for not being team players because they refuse to operate in an unsafe pharmacy environment.
- Being downgraded in salary reviews after raising patient safety concerns
- Having career prospects limited if safety concerns are raised
- The pharmacists capability to do their job being questioned after raising patient safety concerns
Some pharmacy employers view pharmacists who are prepared to work in woefully inadequate conditions without complaint as a valuable asset to the business and an unquestioning attitude is seen as a positive employee characteristic.
It is unsurprising that pharmacists do not have the confidence that their employer is making a genuine attempt to resolve concerns they have about standards of care and risks to patients.
Even if pharmacists are prepared to make a stand and raise concerns relating to standards of care and risks to patients, these are often disputed by senior managers and not properly investigated by the employer. The PDA deals with many cases and often the only resolution is that the pharmacist is forced to leave their employment and seek a remedy through an Employment Tribunal. In the vast majority of ET claims the employer reaches a financial settlement before it reaches the tribunal so as to prevent the details of such cases coming into the public domain. However recently a case involving Boots the Chemist, slipped through net and went all the way through to the public forum of an Employment Tribunal. The judgement make very illuminating reading and demonstrates the quandary that pharmacists routinely find themselves in and the attitude of employers towards pharmacists who raise concerns.
Taking such action by an employee is a career limiting measure. Many pharmacists believe that it may reduce significantly the chances of re-employment and especially at a time when there is an oversupply of pharmacists. Many pharmacists believe that certain employers are taking steps to remove older and more experienced (higher paid) pharmacists from the workforce so as to replace them with cheaper and less professionally assertive newly qualified pharmacists. Locum pharmacists in particular find it even more difficult to raise concerns as they do not enjoy the same statutory protection of their employee colleagues.
For all intents and purposes raising serious concerns in the workplace is seen by some pharmacists as being on par with being removed from the register in terms of retaining their job or finding alternative employment. It is perhaps easy to understand why many pharmacists who have families to look after feel they have little alternative other than to muddle on regardless of the standards of care they observe.
We support the GPhC’s stated aim to take very seriously a failure to speak up about incidents where patient safety is at risk. However, unless there is a culture and an environment in which employers genuinely address these concerns then the GPhC proposals will provide no benefits to patients whatsoever other than to produce a record of unaddressed concerns. Nothing within the GPhC’s proposal to deal with raising concerns in the first place, appears to be linked to placing a requirement upon employers to resolve the concerns being raised. This issue is pivotal to resolving the problem.
As pointed out in the previous section on Duty of Candour, the GPhC must strengthen its approach in the regulation of employers and in particular non pharmacist line managers by using powers it already has in the Section 60 Pharmacy Order.
PDA Response relating to proposals regarding the removal of lists of aggravating and mitigating factors and replacing these with a more general description?
We believe that the lists of mitigating and aggravating factors are very helpful in a whole variety of respects. They assist the committee’s in making their decisions and should theoretically enable the committee’s to make consistent and reproducible decisions. They transparently help the public in understanding how the committee’s come to make their decisions and why there may sometimes be a different sanction for a similar offence. They also help registrants in understanding the impact of their behaviours. They are also used by the PDA in the undergraduate training of pharmacists studying Fitness to Practice.
We believe that not only should the list of mitigating and aggravating factors be retained, but that it should be built upon. We would like to see the lists supplemented by case studies and used by the committee’s as part of their training.
The Council has argued that the current lists may stifle committee decision making, but if that is a concern, then the answer is to provide more training to the committee’s and not to remove the lists. If some of the matters on the lists do not apply to a particular case, then they simply need to be disregarded as irrelevant. The solution being proposed is that the committees receive a more general form of guidance instead of the lists of factors as this would provide a more mature framework for decision making by committee’s. We believe that this is a less than satisfactory approach as it requires the committee’s to be expert at what they do. By the very nature of how the committees are composed, the duration that their members serve, how they are convened and how frequently they operate, some doubt exists as to whether this can be relied upon. We suspect that removal of the lists would lead to problems of inconsistency and a diminution of transparency.
Other areas where clear direction from the Council is needed that should also be included in the guidance to the Disciplinary committees
Insight
Insight is a major factor which is heavily relied upon by committee’s both when they are making a determination and also when they are assessing a registrants return to the register after a period of removal. However, insight is a nebulous term and we are not convinced that there is a universal understanding of what does and does not constitute insight amongst the committees and we include here the Investigating Committee as we see this also being a problem in the earlier stages.
We believe that committees should be provided with more detailed guidance and also training into what constitutes insight and how it can be identified. This guidance would not only be helpful to the committees but would also help in terms of public transparency, the understanding of registrants and additionally would support undergraduate pharmacy training.
Exemplary sentencing
There appears to have been a shift towards much harsher sanctions being issued by the committees and the balance between the public and the pharmacist interest has recently changed.
We are unsure of the motivations behind this, but it may be because the committees believe that if they are seen to be harsher on pharmacists and widely publicise their cases, then it will have the effect of deterring others. Exemplary sentencing is the wrong approach to regulation, indeed, the judicial court system no longer supports exemplary sentencing.
Whatever the motivations currently operating, we would ask that guidance to committees actively discourages an exemplary sentencing approach. Sanctions must become more realistic and proportionate so that they carry the majority of pharmacist opinion with them. We believe that presently, this is not the case.
The detrimental focus upon individual pharmacists
That the Council is strategically focussing its guidance so that it impacts primarily upon practicing pharmacists demonstrates its belief that this will make the greatest positive impact upon patients. This belief is misplaced and is tantamount to telling the passengers of a high speed train what their destination must be and that a failure to reach it will result in expulsion from the train, whilst failing to say anything to the driver or operator of the train. We believe that the Council lacks an understanding of the true dynamics of a community pharmacy setting and the extent to which the pharmacist’s professional autonomy and judgement is routinely overridden by non pharmacist employers who are primarily driven by a profit driven commercial agenda.
We believe that regulation should be used to protect patients by creating a culture in pharmacy that underpins the professionalism of pharmacists and encourages employers to create an environment where such professionalism can flourish. Currently regulation does not support pharmacists who find themselves concerned about standards of care in a working environment over which they have no control. It is a situation where on the one hand there is no regulation of non pharmacist employers whilst on the other there is a growing focus upon individual pharmacists; this creates an impossible “no win” situation for pharmacists and patients alike.
Pharmacists see this imbalance as increasing risk to patients as well as jeopardising their own registration, livelihood and health.
This is a matter of strategic importance and we urge the Council to give this serious consideration.