PD

A21

9/07

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Elizabeth Lee appeal

Substantial progress madepages 8 and 9

CPS Guidance verdict

The good, the bad andthe problematicpages 10 and 11

RP Regulations

9 months onpages 6 and 7

PDA Plus

A focus on membershipbenefitspages 16 and 17

insight

Also inside

Verdict on the new CPS guidance

IS IT WORTH ACANDLE?Some employers say “our indemnity insurance willprotect you if an error occurs”, but can you trust themto robustly defend your reputation?

Protecting an individual pharmacist, in the event that something has gone wrong, requires thespirited defence of that individual. The PDA is solely focused on the pharmacist and does notconcern itself with protecting the employer. In some cases, we even draw attention to theliability that should rest with the employer.

So what is the value of your employer’s promise to provide defence?

How can their defence offering ever avoid the conflict of interest that exists?

What is the likelihood that employer funded indemnity lawyers would act in a way that isdetrimental to the interests of the employer?

What use is employer’s protection where;

• You resign or are dismissed by your employer?

• You make an error because the employer’s pharmacy protocols or staff are at fault?

• You argue in the Court of Appeal that only employers can commit the Medicines Act offence?

If ever there was a time for pharmacists to havetheir rights protected – then that time is now!

� More than £650,000 compensation already secured fromemployers who have treated pharmacists unfairly or illegally

� £500,000 worth of Legal Defence Costs insurance

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13,000 pharmacists have already joined the PDA.

Visit our website:www.the-pda.org

Call us:0121 694 7000

Community Edition

The magazine of the Pharmacists’ Defence Association

summer 10

| insight summer 2010 www.the-pda.org2 Visit our website www.the-pda.org

Chairman’s letter

It shouldn’t surprise me that some large employers expendconsiderable energy in trying to persuade their employeesthat they need not join the PDA; perhaps they feelthreatened by our operations! Some have even sent outnewsletters to persuade their employees that in the event ofan incident, the employer can be trusted to provide legaldefence for them.

What use is that I ask if it may not focus purely on theindividual’s interests?

There is no better case to demonstrate why pharmacistsshould be cautious about this employer message and thatthey should instead join their own representativeorganisation, than the case of Elizabeth Lee.

As many pharmacists will now know, we have managed tosuccessfully appeal Elizabeth Lee’s initial conviction and custodialsentence (see page 8). I believe that it is important for allpharmacists to understand why this prosecution ever happened atall and why we at the PDA, with Elizabeth’s permission weredetermined to use her case to challenge the status quo.

Since the late 1990s a number of high profile cases emerged wherepharmacists that had been involved in dispensing errors, linked tothe death of a patient but where gross negligence manslaughterhad been ruled out, were prosecuted for offences under the 1968Medicines Act. Such cases included what have become known asthe ‘peppermint water case’ and more recently the ‘Prestatyncase’.

No other healthcare professions who make errors at work facefurther criminal charges once gross negligence manslaughter hasbeen excluded. The relevant practitioner is referred to theirrespective regulator to face professional proceedings. Not so inpharmacy, where the Police do, inequitably, pursue criminalproceedings for Medicines Act offences.

In addition the prosecution in both these cases had been focusedspecifically on the individual practitioner and no significantattention was paid to the systems nor the working environmentsthat they were required to work under. The person in the dock wasa pharmacist, a pre-reg and even the technician – in none of thesecases was it the employer.

We have always believed that the Medicines Act was nevermeant to punish individual pharmacists in this way and thatits interpretation needed to be challenged.

The strategy we pursued in the Elizabeth Lee case is described onpage 8, but this plan was only developed after lengthybrainstorming meetings where the legal, practice and pharmacypolitical considerations were all distilled many times over before wewere ready. The plan did not just involve our appearance at theCourt of Appeal, but also required the garnering of support fromwithin pharmacy, from other healthcare professions, kickstarting thedebate about police protocols at parliamentary level and ingovernment – a process that took more than two years.

It was necessary to research the detail of the Medicines Act and itsorigins and so we went as far as finding a retired legal specialist whoadvised the government on the original construction of the 1968Medicines Act in the mid 1960s.

The fact that this strategy was vindicatedwas not only the result, in terms ofoverturning the original conviction, but isalso referred to in the very first line of theextensive published written judgementgiven by the three appeal court judgeswhere they say that we “raised novel[legal] questions on the constructionof the Medicines Act 1968.”

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

“But so what?” You might say – wouldnot that be expected of any defenceteam 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 inan entirely different way. It did create important legal precedentswhich will reduce the risk of prosecution for pharmacists in thefuture. The legal clarification that it has produced however, maywell increase the risk of prosecution instead for those operating apharmacy business.

Consequently, would an employer offering legalrepresentation for its employee ever have contemplatedmounting such a defence?

This result occurred because the philosophy of the PDA is focusedon the interests of the individual pharmacist and not that of theemployer. Had we been concerned primarily with employer intereststhen we may not have spent more than two years in extensivepreparations and significant sums in defending Elizabeth and wewould not have set important precedents to benefit pharmacists -but not owners. Had the employer’s interests been in primary focusthen Elizabeth may have simply been advised to throw in the towelso that lawyers could then enthusiastically offer arguments inmitigation.

The case of Elizabeth Lee offers the profession many object lessonson safe practice; the importance of rest breaks and much more. Itsurely also makes a much broader point and that is that theinterests of the employer are not always the same as the interests ofthe individual pharmacist and that these distinct interests must berecognised and handled with great care.

I believe that in recent years, the profession has beendisproportionately influenced by a small number of large employersto the detriment of the vast majority of pharmacists and thisimbalance should be addressed. Pharmacists must once more beenabled to practice with professional independence for the benefitof patients and not simply be controlled by company or NHS edicts.

As articles in this magazine will describe, the PDA continues towork passionately, expending great efforts on looking after theindividual pharmacist. This is at the very core of our identityand drives us whether it be in our defence work, in howpharmacists should be treated in the workplace, or in how bestto shape the future of the profession.

We ask that you support us.

Why we have challenged the precedents of the past

ContentsNews p4-5

The RP Regulations - 9 months on p6-7

The Elizabeth Lee Appeal - substantial progress made p8-9

CPS Guidance - Good news and bad news p10-11

The PDA Union making good progress p12

PDA asks GPhC to drop old RPSGB disciplinary cases p13

MUR Update p14-15

PDA Plus - Income Protection Plan with PG p16-17

RPSGB Workplace Pressures Campaign p18-19

£30,000 paid to employee in wrongful dismissal case p20

Contesting the new Alliance Boots Staff Pension Scheme p21

The individual pharmacist NHS contractor p22-23

In December 2009, the PDA’s Stop Remote Supervision (SRS) campaign went up a gear when we backed a group of RPSGBleadership election candidates. We thank all those PDA members that supported our call to action. The result was thatevery one of those candidates was elected by a large margin. This demonstrated the strength of feeling amongstpharmacists and gave the elected candidates a clear mandate to take the requisite measures.

Unfortunately, the launch of the new regulator, the GPhC has been delayed until September 2010, as a result thepharmacists that we all supported will not be able to take charge until then.

To comment on this article please go to www.the-pda.org/is/101

Stopping Remote Supervision – what next?

This is unfortunate, as the current council infamously chose not toback a call for the delay of the RP regulations in the summer of 2009earning the mistrust of many members. Furthermore, in the recentRPSGB officers elections, the current council expelled Martin Astburyfrom his position as Vice President and refused to support TristanLearoyd in his bid for the Presidency (both successful SRScandidates). Democracy has spoken in the recent membershipelections and it is clear who pharmacists wish to be in control of theirprofessional agenda. Despite that, the current council has decidedfor its own reasons to reduce the influence of the SRS individualsuntil September. As a result of its conduct, we feel that the currentcouncil continues to generate significant ill will amongst theprofession.

Despite these setbacks, we are pleased to see that the SRScandidates will not be deflected from their objectives and that theywill make progress in any event.

The PDA has received confirmationthat the ‘supervision’ issue will nowbe driven by the Pharmacy Boardstructure, despite not yet being incomplete control of the RPSGB. Wehave already been contacted byLindsey Gilpin, the English PharmacyBoard chair and invited to participatein a pan-professional review ofsupervision – and we have readilyaccepted. We are aware that otherorganisations have also been invitedto join in. It is obvious that those whomembers voted for at the lastelection are keen to ensure that theiractions can be aligned with thewords in their election manifestos.We expect to be working closely withthe professional leadership body assoon as the new leaders take over; inthe meantime, we will be supportingand playing our part in the interimprogramme described.

The Interim Programme

July 2010

•PDA has already had early talks with the leadership of thenew PLB and has been invited to take part in the pan-professional plan to resolve the Remote Supervision issue.

•Membership surveys will be undertaken during July, so thatthe views of pharmacists and the evidence is gathered tosupport the campaign.

August 2010

•Based on member feedback, a Supervision Strategy dayinvolving representatives of several pharmacy organisationsto be held with the aim of producing a practical review ofthe current supervision regulations – an alternative to thecurrent government proposals.

September 2010

•Initial ideas to be published for consultation within theprofession. Opportunities for direct membership dialoguevia an open forum at the British Pharmaceutical Conferenceand other pharmacy gatherings. Direct focus groupmeetings with pharmacists to be held in various locations.

•Professional dialogue opened up using all available channels(e.g. internet, letters in the PJ, magazine features etc.) so asto gauge the support of the profession.

• Initial draft of the professions view on changes tosupervision produced.

•Possible petition of the membership, if needed, so as toshow the levels of support.

October 2010

•A new supervision policy handed to the government andthe GPhC.

This outline plan has the support of the PDA, and we will beworking in earnest to harness the views of PDA members. Watchout for our on-line surveys, petitions and focus group invitations.We are determined to rid pharmacy of the spectre of remotesupervision – the plan to operate a pharmacy in the absence ofthe pharmacist. If you want us to succeed then please be ready tooffer your direct input and support when called for.

www.the-pda.org insight summer 2010 |3

Mark Koziol, Chairman, The PDA

Lindsey GilpinEnglish Pharmacy BoardChair

“We are totally focusedon creating a new policyon supervision which putsthe availability ofpharmacist at the heart ofthe service and we invitethe PDA to support thispan-professionalinitiative.”

“The interests of the employer are not alwaysthe same as the interests of the pharmacist”

Mark KoziolPDA Chairman

As membership of the PDA continues togrow, more and more cases are beinghandled in Scotland and as aconsequence, the PDA has now openedan office in Edinburgh.According to Mark Koziol, PDA Chairman;

“Unlike handling cases on behalf ofmembers in England and Wales, when wehandle employment and other legaldisputes on behalf of members inScotland, we are often dealing with theimpact of different legislation. BecauseScotland is a different legal jurisdiction, weare increasingly seeking advice fromScottish legal sources and Scottishorganisations. We have therefore decidedto open a part time office in Edinburgh sothat we can get closer to these issues andbe closer to our members.”

From a strategic perspective, the fact thathealthcare provision is administered andorganised differently in Scotland than it isin England and Wales, provides the PDAwith additional opportunities. In particular,the PDA believes that some of its strategicobjectives around the recognition of theindividual pharmacist as an NHS contractoris a model that is more likely to beexplored in Scotland first, ahead of a moregeneral UK deployment.

He further continued;“We will be lookingto work more closely with our membersand also with the Scottish government,healthcare bodies and pharmacyorganisations to support the individualpharmacist contractor model. We are keento explore novel and more beneficialapproaches to pharmaceutical care that

will provide our members with variedcareer paths and will also delivergreater value for money for thetaxpayer.”

The PDA Office is based at;

9-10 St. Andrews Square,Edinburgh,EH2 2AFTelephone 0131 473 2365

PDA establishes office in Scotland

Non Pharmacist managers may harm patients andmust be regulated.

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News

The use of medication error logs iswidespread and encouraged by the PDA assupporting good practice and in line withthe principles of clinical governance. Theselogs are used for a variety of reasons, butultimately, they are a very good riskmanagement tool. Ideally, time andresources (in terms of support staff) shouldbe made available to enable pharmacists toreview the information contained in the logsregularly. Such an analysis should then ideallybe discussed with staff members to identifyareas of risk associated with the proceduresand processes and if needs be to updateStandard Operating Procedures. Indeedregular audit of such logs is considered to beindicative of good practice, and pharmacistsshould be asking their employers to providethe appropriate resources to carry this out.

However, beyond this some employers arerequiring employees and locums to fill inpersonal reflection logs which are supposedto help you understand your involvement inthe error, any failings you may be able toidentify in your own behaviour or knowledgeand lead you to actions you may undertake toovercome these failings.

The PDA supports this kind of reflective andlearning exercise as long as this remainspersonal, this is after all, a matter ofprofessional CPD and personal development.There have however been cases where theselogs have been used by the RPSGB toinvestigate PDA members. By filling in theselogs members can self incriminate as far as apotential fitness to practice investigation isconcerned.

The PDA advises employed members to enterinto a dialogue with their employers to ensurethat these logs will remain personal andconfidential; that they are used solely for thepurpose of personal reflection and will not beused either internally or outside the companyfor the purpose of instigating some form ofdisciplinary investigation. Employees whocannot get that assurance from theiremployers are advised to think very carefullyabout exactly what it is that they write inthese reflection logs, ideally pharmacists areurged to operate their own personally heldreflection logs.

Locums are recommended never to useemployer’s reflection logs and to maintaintheir own.

So what about these Reflection Logs?

In itssubmissionto theGPhCregardingthe rulesthat it willbe usingwhen itbegins toregulate,the PDA

was critical ofthe current investigation processes used bythe RPSGB and the hearings of RPSGBDisciplinary Committee calling them“unnecessarily time consuming,

cumbersome and costly.” Theseunnecessary costs are having to be metthrough pharmacist registration fees.

The PDA believes the costs of hearings couldbe significantly reduced in a number of ways.Two examples would be:Using the discretion of the Chair to moveproceedings on to the next stage withoutfurther and often lengthy committeedeliberation if the facts are admitted and thepharmacist has accepted that their fitness topractice is impaired. Ensuring that chairmendo not operate outside the rules and extendhearings unnecessarily.

The PDA has recently been involved in a casewhere the RPSGB’s lawyers have presented

their ‘prosecution’ evidence against thepharmacist; our member has admitted thefacts and has agreed that their fitness topractice is impaired. Everyone expected theDisciplinary Committee to issue a sanctionand that that would have been the end of thematter. However, everyone was surprisedwhen the chairman instead decided toinstigate a further investigation, henceprolonging the case and increasing the cost.

The PDA has discussed its views ondisciplinary rules at a recent meeting with theChairman and Chief Executive of the GPhC.Full details of the PDA submission areavailable on:www.the-pda.org/gphcrules

Disciplinary Committee Chairman oversteps the mark

New regulations entitled the ‘EmployeeStudy and Training (Eligibility, Complaintsand Remedies) Regulations 2010’, whichcame into force in April of this year entitleemployees with at least 26 weeks’ continuousservice to ask their employers for unpaid timeoff work to undertake study or trainingrelevant to their productivity and effectivenessin their job.

Employers must consider any requestsreceived from eligible employees in a similarway to flexible-working requests, i.e. bothparties must meet within 28 days of the

request being received to discuss it, andwithin 14 days of that meeting, the employermust write to the employee with theirdecision. The employer can refuse the requestbut the letter must explain the grounds forrefusal. The employee can appeal refusalwithin 14 days of receipt of the letter.

The regulations only apply to employerswith at least 250 employees but it isanticipated that the right will be extendedto cover all employees from April 2011.

The new rights do not apply to locums.

www.the-pda.org insight summer 2010 |5| insight summer 20104 www.the-pda.org

In its recent submission to a GPhCconsultation on standards – the PDA calledfor the GPhC to register non-pharmacistmanagers and directors of pharmacycompanies in the future so that they couldbe struck off if their decisions harmedpatients.

The good news is that the PatientsAssociation is singing from the same hymnsheet and has asked for much the sameapproach to be taken in the Health Servicegenerally.

The comments from the Patients Associationcame after a report published byBournemouth University in June highlightedconcerns being expressed by surgeons.

When they were asked about what gets inthe way of patient safety, many said they didnot feel in full clinical control, because ofpressure from managers to reach targets.

One of the respondents warns againstbowing to these pressures: “Don’t beseduced by management into making do,thinking you are being heroic; you’re not,you are just being dangerous.”

The author of the report observed;“If anything goes wrong they [thehealthcare professionals] are heldresponsible but they are not in charge.The key is the influence - and often themalign influence - of managers who areconcerned with meeting targets.”

The healthcare professionals questionedcould so easily have been pharmacistscommenting on the way they are pressurisedinto performing MURs or the way they asresponsible pharmacists are required toinherit the liabilities when they are not giventhe authority or control.

In a statement the health secretary forEngland, Andrew Lansley, said the reporthighlighted a point he had made repeatedly;

“Patient safety must come first, thatmeans allowing clinicians to focus on thepatient’s treatment, rather than the diktatsof managers. That’s why we will abolishtop-down process targets and replacethem with outcome measures, which driveimprovements in the quality of patientcare.”

The PDA will press the regulator to ensurethat non-pharmacist managers are heldaccountable in situations where their conductmay cause harm to patients. Furthermore,the PDA continues to defend membersagainst the imposition of inappropriate topdown targets – such as those set for MURs.

Full details of the PDA submission areavailable on:www.the-pda.org/gphcstandards

RPSGB Headquarters

New rights to take time off for training

www.the-pda.org| insight summer 20106

The RP Regulations 9 months onSince the Responsible Pharmacist (RP) Regulations came intoeffect on 1st October 2009, pharmacists have been strugglingto come to terms with their new legislative and professionalresponsibilities. As part of our support to members we haverepresented a number of individuals through companygrievance processes, when they could not get answers to themany questions they had asked.

These grievance meetings tend to have a common pattern, inthat company managers do not provide answers at meetings,preferring instead to seek “Head Office” advice. Head Officeadvice often takes months to arrive and in one case thegrievance process took five months to answer the questions.We are of the view that they are treading very cautiouslybecause they recognise that the true impact of the RPregulations upon their operations may have unwelcomeconsequences to their levels of control and also potentially asignificant increase in their costs.

Nevertheless, from the responses gained to the questionsrecently put, the PDA can now update all members on the latestemployer interpretation of the RP regulations.

Rest BreaksAlliance Boots has provided the most clarity in this area andconfirms that it does not direct its pharmacists to remain“signed on” during rest breaks. The most recent response thatwe have had on this matter recognises what the PDA positionhas been all along which is that for a rest break to be takenlawfully (under Working Time Regulations) then the worker mustbe enjoying an uninterrupted break, they must not becontactable nor be required to remain on the premises. TheBoots advice unequivocally states; “The decision as to whetherto remain signed in or to signout as RP during such times[rest breaks] remains withthe individual pharmacist..”“No action will be takenagainst an RP who choosesto sign out during his or herlunch break.”

This position is welcome, butit is a great shame that Alliance Boots do not encourage signingoff at break times and instead qualify their guidance by goingon to say “Whilst any RP has the autonomy to decide to signout during their lunch break this may affect the number ofstores in which they can be offered work, or the number ofsuitable shift patterns.”

It is disappointing that after reinforcing the right for an RP tosign out and take a proper break, Alliance Boots then produces asituation which creates pressure for pharmacists to abrogatetheir statutory right to a physical and mental break byintimating they may face a limitation in employmentopportunities if they sign out whilst doing so.

Rest Break ProcrastinationAfter considerable pressure applied by the PDA’s legal team ontothe Department of Health, in November 2009, the DoH and itslawyers conceded that the RP regulations had not taken intoaccount the wider employment legislation. The DoH agreed thatthe RP should not remain signed on during a rest break as thiswas in conflict with the Working Time Regulations, which requiresrest breaks to be periods where a worker must be enjoying anuninterrupted break, they must not be contactable nor berequired to remain on the premises. Since then, the plan to find aprofessional solution to this quagmire was handed to the RPSGB.

However, in the two meetings to which pharmacy bodyrepresentatives were invited, no meaningful progress has beenmade. The PDA is now receiving little in the way of progressreports when it pursues the RPSGB for information. It is a greatshame that the RPSGB managed to clarify that large multiplescould operate certain aspects of their business before the arrivaland after the departure of the RP in August of 2009 and yet itappears to be still the issue that most affects pharmacists andimpacts upon patients, that of rest breaks, is a matter that it isprocrastinating over nearly one year later.

Responsibility & LiabilityIt appears to us that the largest employers do not accept thatbeing an RP brings significant additional risk or changes liability,nor do they accept that the RP regulations involve any changesto express contractual terms of employment. We are not awareof any increased pay awards for this new role. Consequentlyemployers have chosen not to consult with their pharmacistworkforce. However, employment disputes being handled by thePDA suggest that the “No Change” approach prevalent in theseorganisations is in reality a façade.

Employment RisksIn one case, two pharmacists working at the same pharmacywere called into disciplinary meetings due to allegations theyhad both gone home at the end of their shift, but before all thecare home business was finished. The pharmacy had been verybusy that day and they only learned about the care homes lateon, leaving no time to complete them. The RP received a finalwritten warning because of his RP role and the other (non-RP)was given a lesser sanction. This case suggests that employersmight view the RP as having a greater responsibility whenconsidering allegations of a disciplinary nature.

The PDA organised an appeal against this decision for severalreasons; one being that the disciplinary letter confirming theirsanction was produced days in advance of the actual meeting.Disciplinary meetings are supposed to be impartial, have nopredetermined outcome with the disciplining manager reachinga decision based on the facts and any mitigation brought up bythe employee during the meeting. Clearly the letter exposed thecompany processes as a sham and it had no option but togrudgingly rescind the action, otherwise it would have facedcostly litigation from the PDA for such a gross failing.

Another large multiple was struggling to find evidence to provethat a long serving pharmacist was responsible for a customer’smedicine going missing from the pharmacy a few weeks earlier,when it wasn’t delivered. The pharmacist was adamant she didnot see it after checking it. After four stressful meetings, thecompany took the new approach that as the RP on duty at thetime and that therefore she was responsible for securing thesafe and effective running of the pharmacy she was responsiblein any event for the pack going missing.

Contactable PharmacistAlliance Boots have clarified the role of the “ContactablePharmacist”. If an RP whilst signed on, but absent, is notcontactable or able to return within reasonable promptness,another pharmacist - a “Contactable Pharmacist”must befound, according to the regulations. This other pharmacist mustbe “available and contactable” which the company define asmeaning s/he is contactable by telephone and available toattend to matters brought to his/her attention by the pharmacyteam who are still on the premises. The Contactable Pharmacistmay need to get to the pharmacy within reasonable promptnessin serious circumstances. The company has clarified that this‘other’ pharmacist may decline to be the ContactablePharmacist and in any event there is no additional remunerationor recognition for this role.

LiabilityNumerous members report that whilst they are not yet signedon or signed on, but absent, members of staff are engaging inactivities that are either unlawful under the regulations or havethe potential to attract the attention of the regulator. It is clearthat many members of staff are confused by what can and can’tbe done in the absence of the RP.

The NPA has continued to pronounce that the RP regulations donot change any relationships between employer and employee.

However, wearing the hat of being the pharmacy insurer, theNPA may be taking a view that is not consistent with thatapproach. During one recent civil claim, it argued that the RP onduty at the time the prescription is handed out (not when it isassembled) is 100% liable in the event of the wrong medicinesbeing handed out to a patient. In this case, the pharmacy owner(an NPA member), made a dispensing error which was missedduring the checking process, then bagged and left forcollection. The patient called to collect it several days later,when another RP was on duty. The patient took some incorrectmedication and claimed compensation from the pharmacy.However, the NPA passed this claim directly onto the RP, arguingthat under the new RP regulations, the RP should be heldresponsible. The PDA has already settled the 100% liability (inexcess of £4,000) and we now intend to legally challenge theNPA for a fair contribution to these costs.

Whilst this episode in itself, does not signify that there has beena wholesale policy change at the NPA in relation to RP liability, itnevertheless is the first time in our experience that the RPregulations have been cited as a justification for passing 100%of the liability across to another pharmacist, where the error wasactually committed by the owner some days earlier.

Professional AutonomyPrior to the RP regulations, many pharmacists found that nonpharmacist company managers readily interfered with and evencountermanded their professional decisions. This has not abatedsince the introduction of the regulations despite the enhancedautonomy the regulations were supposed to give. RPs arefrequently pressurised to change their minds when they attemptto close the pharmacy rather than to continue operating withunsafe resources. Requests for additional staff and resources bythe RP so as to secure safe and effective operations are oftendenied or ignored.

A supermarket recently dismissed a pharmacist RP whoexercised her professional judgment as RP and decided that amember of staff was neither competent nor capable of workingin the dispensary. The supermarket decided that the aspiringdispenser’s ‘right’ to be trained under their dignity at workpolicy, overrode the pharmacist’s professional decision on howbest to satisfy a statutory responsibility to secure the safe andeffective running of the pharmacy. The involvement of thesuperintendent did not provide support to the RP and merelyreinforced the corporate view that the RP must work with thisperson or be dismissed, even though the pharmacist had usedobjective criteria to demonstrate that this aspiring dispenserwas incompetent and a risk to patient safety.

The Hospital sectorA more detailed analysis of the RP position in hospital pharmacycan be found in the Hospital edition of Insight on pages 22 and23.

What is the point of the RP regulations?The PDA continues to support members in many individualcases of RP conflicts providing support and assistance wherepossible. However, the question that is now presenting itself isthat if a Stop Remote Supervision campaign is able to forestallremote supervision, then what exactly is the point of havingthe burdensome RP regulations at all? They are neither in thepublic’s nor in the profession’s interests. The PDA will beasking the government this question as we move forward andas the Remote Supervision issue is settled one way or another.At that point, we will be seeking membership support. Beyondthat we believe that there is much to demonstrate the cautionwith which employer led pronouncements on the effect of RPregulations should be regarded. Should pharmacists havedoubts or concerns, they should seek advice from the PDA.

www.the-pda.org insight summer 2010 |7If you have problematic RP experiences please go to www.the-pda.org/is/102

“The DoH has conceded that the RP should not remain signed on during arest break as this is in conflict with the Working Time Regulations.”

RPs left with some difficult options

www.the-pda.org8

The DisappointmentThe Section 64.1 offence (for providing thewrong product) that had been consideredat the original 2009 Old Bailey hearing hadbeen left in abeyance. At the Court ofAppeal, it was put to the judges that theyshould consider leaving the Section 64.1offence in abeyance. This was becauseElizabeth Lee had never pleaded guilty tothat offence at the first trial. But also andmore importantly, because we had beenled to believe that new protocols were tobe released imminently by the CrownProsecution Service. These protocols wouldensure that pharmacists who commit one-off dispensing errors which are related to adeath and where investigations rule outgross negligence manslaughter should bereferred to the RPSGB so as to faceprofessional discipline and not criminalproceedings under the Medicines Act.

Had the judges agreed to this proposal,then Elizabeth Lee would have been able toleave the court with no criminal convictionto her name and this was the whole aim ofthe PDA’s defence strategy.

However, the Crown Prosecution Servicelawyers in a surprising revelation arguedthat no such protocol was imminent asdiscussions between the various parties thatwere working on it had reached animpasse. The impression created was that itcould even take a year to resolve.Furthermore, they indicated that if thejudges did leave the offence in abeyance asrequested by the defence team, then theywould in any event instigate a freshprosecution and trial for offences underSection 64.1 of the Medicines Act.

Even though the PDA’s team had legalarguments to defend such action, if itcame, this was not a viable option as it wasno longer appropriate to expect ElizabethLee to wait another long period to face theprospect of more court appearances, nor(quite understandably) did she have thedesire to do so.

Consequently, under an established legalprocedure the prosecution asked thejudges to substitute the Section 85.5offence with the Section 64.1 offence andwith the agreement of Elizabeth Lee thejudges did this. As far as sentencing wasconcerned, the judges stated that theyagreed with our arguments that the originalsentence that had been initially imposedwas manifestly excessive and they ruledthat the penalty should be a fine of £300payable within 28 days.

The Result• The original conviction of Elizabeth Lee

for offences under section 85.5 of theMedicines Act have been overturned.

• Pharmacists (unless they are owners)should not be charged with suchan offence again (nor for offencesunder Sections 52, 65.1, 65.2, 85.3,85.4).

• With the appeal against the Section85.5 conviction successfully upheld, thecustodial sentence originally received byElizabeth Lee is automaticallyoverturned.

• The substitution of the Section 64.1offence resulted in a conviction, butwith a fine of £300.

• The judges agreed that Elizabeth Lee’soriginal custodial sentence wasmanifestly excessive.

Unfinished BusinessAs a result of the PDA’s strategy substantialprogress was made, not just for ElizabethLee but for the wider profession.Nevertheless there is a sense of frustrationand a feeling of unfinished business at theconclusion of this episode. Elizabeth Leestill has a criminal conviction and the PDA’saim was to have all criminal sanction

removed. Although some personaldifficulties have been removed for Elizabethas a result of her successful appeal againstSection 85.5 and the custodial sentencebeing quashed (like visa applications tocertain countries or job applications forexample) there is still the question ofwhether an offence under section 64.1 ofthe Medicines Act (wrong product supplied)is appropriate in the event of a dispensingerror. However, in the event that anotherPDA member should be unfortunateenough to face such a prosecution, thenthe PDA will not shirk from the task oftaking up the legal challenge.

The mission to decriminalisedispensing errors continuesFollowing this case and directly because ofthe surprise revelations about the allegedimpasse over the Crown Prosecution Serviceprotocols, the PDA applied significantpressure to both the Chief Executive of theCrown Prosecution Service and also to thenew Pharmacy Minister, Earl Howe. Throughprevious dealings with Earl Howe on boththe Elizabeth Lee case and also on RemoteSupervision, the PDA knows that the newPharmacy Minister shares our concerns. Thispressure has been amplified by furtherletters from parliamentary supporters suchas Baroness Cumberledge who is the actingchair of the All Party Pharmacy Group.

A twist in the taleIn a further surprising twist to this tale, thelong awaited protocols (described in thenext article) were finally and suddenlyreleased not one year after the Appeal ofElizabeth Lee, but just three weeks after.The reality about the delays turned out notto match the report given by the CrownProsecution Service to the judges in thecourt of Appeal and we cannot but wonderwhat the judges would have decided aboutleaving the Section 64.1 offence inabeyance had they known that they wereindeed just about to be released.

This last development has created manyconcerns within the profession and whatit undoubtedly shows, is that the worldof healthcare practice can truly be ahostile place. Members can be reassuredthat the PDA has already written to theAppeal Court judges and brought these‘developments’ to their attention. At thetime of going to press, we await aresponse.

The practice that has developed inthe last decade for the Police to usethe 1968 Medicines Act to prosecutepharmacists once gross negligencemanslaughter was excluded was atrend that the PDA was determinedto stop, when Elizabeth Lee faced herinitial trial in April 2009.

The only appropriate course ofaction, in the view of the PDA, wasthat if gross negligencemanslaughter offences had beenruled out following investigationthen the entire matter should thenhave been referred to the RPSGB andhandled as a professional disciplinaryand not as a criminal matter.

Although the PDA had dealt with severalpotential gross negligence manslaughtercases against pharmacists before, thecase of Elizabeth Lee was the first oneinvolving the PDA that was actually goingthe distance, in this case to a High Court.Previous court cases, such as the peppermint water and thePrestatyn cases, which involved Medicine’s Act offences had allbeen managed by legal teams established through employers.Consequently, this case provided an opportunity to createimportant legal precedents which would potentially protectpharmacists in the future.

When Elizabeth Lee went to the Old Bailey in 2009 to face twocharges under the 1968 Medicines Act, the PDA’s defence teamargued that she should not have faced either of the charges asthey simply did not technically apply in the case of a dispensingerror.

The offence under Section 85.5 – for attaching the wrong labelto the medicine, was not an offence that could have beencommitted by Elizabeth Lee as technically this was an offence thatcould only have been committed by a pharmacy business.

The offence under Section 64.1 – for providing the wrongproduct, was a section of the Act that the PDA argued wasspecifically designed to be used in situations where an adulteratedproduct or a product of a poor quality was supplied and not at alldesigned to be used in dispensing error situations.

Had these arguments been accepted, then she would not havebeen convicted, furthermore, in the future, other pharmacistswould have been spared the experience too, as the Police wouldnot have been able to use the Medicines Act in the way that theyhad previously.

At the original 2009 Old Bailey trial, following an initial not guiltyplea from Elizabeth Lee, the PDA’s defence team approached thebench prior to the start of the hearing to put their legalarguments. However, the judge made it clear that it was unlikelythat these arguments would succeed. It was obvious that any jurymade up of members of the public would be influenced by thejudge’s directions on points of law which would have significantlyreduced the chances of success. This created a further risk: had

Elizabeth Lee been found guilty afterinitially pleading not guilty, then shewould have received a more severesentence. Consequently, in a tacticalmove, the plea of guilty was entered forthe Section 85.5 offence (wronglabeling), so as to enable thesearguments to be heard in a higher court,the court of appeal.

Elizabeth Lee was therefore convicted foran offence under Section 85.5 (labelingoffence) but the judge left the 64.1offence in abeyance.

No one imagined that despite a guiltyplea, which guarantees a ‘discounted’sentence from the court, the judgewould then give Elizabeth Lee a custodialsentence. This development was to resultin substantial shock waves reverberatingthroughout the entire profession ofpharmacy and beyond.

The AppealThe original strategy and legal arguments were maintained and onMay 26th 2010, the Appeal of Elizabeth Lee was heard by threesenior judges at the Royal Courts of Justice.

Added now to the list of objectives, was the task of overturningthe custodial sentence handed down in the original hearing andalso to ensure that this was to be the last court appearance forElizabeth Lee.

The SuccessAfter a considerable legal argument between the defence and theprosecution, the Appeal judges stated that (and we quote) “thiswas a case that has succeeded in raising novel questions aboutthe construction of the Medicines Act” and they agreed withthe PDA’s ‘novel’ construction. Consequently, they quashedElizabeth Lee’s conviction and as a result, her custodial sentencewas automatically erased.

The effect of the way that we asked ‘novel questions’ about theconstruction of the Medicines Act and the fact that the AppealCourt judges agreed with us is that it has been clarified thatoffences under Section 85.5 can only be committed by owners ofbusinesses and not by the pharmacists that they employ (whetheremployed or self-employed). That same legal construction doesnot just apply to Section 85.5 of the Act, but also to other sectionsas well, such as Sections 52, 65.1, 65.2, 85.3 and 85.4 and thesedescribe various other offences that employees and locums wouldhave previously been exposed to that they will no longer be.

As a result, in future, if a pharmacist attaches the wrong label to adispensed medicine (or other offences described in the additionalsections above), then they will no longer be vulnerable to criminalproceedings, and they should potentially only face professionaldisciplinary proceedings.

Substantial progress made as a result of the Elizabeth Lee appeal

| insight summer 2010 www.the-pda.org www.the-pda.org insight summer 2010 |9To comment on this article please go towww.the-pda.org/is/103

“We succeeded in raising novel questions aboutthe construction of the Medicines Act.”

PDA chairman outside The Appeal Court(picture courtesy of Chemist & Druggist).

Full transcript of judgement:www.the-pda.org/judgement

www.the-pda.org insight summer 2010 |11www.the-pda.org| insight summer 201010

On 21st of June 2010, just 26 days afterthe Elizabeth Lee Appeal Court hearing,the Crown Prosecution Servicepublished its dispensing error guidanceto prosecutors.

The PDA put the idea of a CPS protocol tothe government in the aftermath of thecustodial sentence given at the original trial.The protocol was to apply in cases of one-off dispensing error that involved a death,but where gross negligence manslaughterhad been excluded by a police investigation.The intention was to ensure that rather thaninstigate criminal proceedings, the Policewould hand such matters to the professionalregulator, The RPSGB, to take any necessaryaction.

Whilst the guidance contains some modestimprovements for pharmacists, it alsocontains bad news, additionally, parts of theguidance simply do not reflect the reality ofpharmacy practice.

We examine the detail ofthe guidance.

THE GOOD NEWS

• The new February 2010 Codefor prosecutors

The main code for prosecutors was actuallyupdated in February 2010. This alreadyprovides some additional protection fromprosecution for pharmacists. It may haveeven been informed by the political furorearound the Elizabeth Lee situation. Withinthe list of tests that prosecutors shouldconsider when deciding to prosecute or nothas been added a brand new test whichstates; “that the suspect has been subjectto any appropriate regulatoryproceedings.” This new test is a publicinterest factor weighing against aprosecution. However, professionaldisciplinary action is taken after criminalcases have concluded, so this new test as itstands would have been unlikely to offer anyassistance. However, the pharmacy legalguidance published on June 21st, addsmore comfort, as it states; “Has regulatoryor remedial action been taken (against apharmacist or technician), or is it likely tobe taken?” The addition does give slightlymore comfort. If the pharmacy regulatorhas given notification of an intention to takeregulatory action, then this may reduce thechances of a prosecution.

• Notification of the MedicinesAct review

The guidance states that the forthcomingreview of the Medicines Act is expected tochange how it deals with human error in apharmacy and it sets a timeframe for thechanges for 2012. Despite stating that untilthe law is changed, the existing code andpharmacy legal guidance should be used,we believe that the very existence of thesestatements in the guidance is beneficial. Ifthere are any similar cases in the nearfuture, then we will be using this statementto explain to the Police that pharmacyprosecutions should be handled with care.

• Clarification of what the MedicinesAct was intended for

Our research concludes that the part of theMedicines Act that has been used by thePolice (Section 64.1) to deal withdispensing errors was not designed to dealwith dispensing errors, but to tacklesituations where dishonest medicinessuppliers and manufacturers were providingadulterated or below standard medicines tothe public – probably to maximise profits.

This ‘construction’ (as the judges would callit), would have formed an important plankof our defence argument had we had theopportunity to defend Elizabeth Lee’sSection 64.1 offence. We now find,couched in the first line of the CPSguidance the sentence “The MedicinesAct 1968 exists to protect patients fromunscrupulous suppliers of medicines.”This statement underpins our arguments ifwe defend a pharmacist in the future, for itis obvious that a pharmacist who makes ahuman error is patently not anunscrupulous supplier of medicines.

THE BAD NEWS

• Responsible Pharmacist (RP)regulations

Embellished at the heart of the guidance isthe principle that it is the RP who is nowrequired to establish, maintain and keepunder review procedures to ensure that apharmacy is operating in a safe andeffective manner. The RP will need to (andwe quote) demonstrate that he or she

had put in place and operated writtenstandard operating procedures, definingindividual responsibilities andaccountabilities, establishing proceduresfor identifying and remedying poorperformance and ensuring thatmembers of the dispensary team aresuitably trained and competent toundertake the tasks for which they areresponsible.

The reality is far detached from this position.Many community and hospital pharmacistswill recognise that employers are extremelyreluctant to allow their RPs to have anythinglike this level of control. The pharmacy inwhich they work IS STILL being controlled bytheir employer or by someone other thanthe RP. The PDA is dealing with cases whereRPs are either being disciplined byemployers, or have been dismissed becausethe employer does not allow them toexercise their statutory duties under the RPregulations (see pages 6 and 7).As the guidance gives a false impression toprosecutors, it increases the exposure of RP’sand it moves employers even further awayfrom the consequences of their actions.

• The Public interest factors

The guidance identifies several ‘publicinterest factors’ that prosecutors shouldexplore when considering pharmacistprosecutions. The questions that it asksappear to be demonstrative of only asuperficial grasp of pharmacy practice.For example;

– Is there any evidence that thepharmacist, technician or any otherperson has made other dispensingerrors?

With an estimated three dispensing errorsper pharmacy per week in the UK, it will notbe difficult to establish that a pharmacisthas made previous dispensing errors,especially if error logs are being used. Weare concerned that this ‘other dispensingerrors’ test will result in a further reluctanceto make error log entries amongstpharmacists to the detriment of the public.

The guidance asks other questions that webelieve that the CPS will not be able toproperly address because it does not havethe expertise. Negligence must beassessed in consultation with those whoknow what pharmacy negligence is i.e. thepharmacy regulator. This is not a role forthe Police.

These considerations include;

– What was the seriousness of thedispensing error, were the drugs (sic)particularly dangerous or poisonousin themselves, requiring very carefulhandling and additional checks to bein place, or was the dosagedispensed substantially greater thanthat prescribed or substantiallybeyond the usual treatment range?

– What is the culpability of thoseinvolved in the dispensing error, wasit simply an error or is there evidenceof recklessness or intent?

THE PERVERSE INCENTIVE

• Due diligence defence

A substantial section of the guidance dealswith what it calls due diligence defence.The thrust of this is that (and we quote) if aperson can prove that he or sheexercised all due diligence to secure thatthe (Medicines Act) would not becontravened and that the contraventionwas due to the act or default of anotherperson, he or she has a defence to acriminal charge.

The guidance makes reference to thepotential liability that is faced by pharmacytechnicians in the event of an error. Forexample if an RP establishes or operates toa robust protocol which places a registeredpharmacy technician in charge of thedispensary with the pharmacistundertaking only the initial clinicalassessment of a prescription. Should thepharmacist then decide to work withpatients directly in the consultation room,the counter or another area of the hospitalpharmacy whilst the technicians undertakethe dispensing and handing out of theprescription to the patient or ward, then inthis example, a straightforward dispensing

error would see the registered dispensingtechnicians criminally liable, but leave thepharmacist with a good defence. Thisposition leads to the prospect (perhapsunintentionally) that pharmacists may bebetter off (from a criminal liability point ofview) in distancing themselves from thedispensing process. We are aware that thissituation is, for operational and generalstaff availability reasons already relativelycommon in hospital pharmacy, but not soin community pharmacy. We argue that forthe community sector, where largerdispensary teams are few and far between,that this prospect cannot be in the publicinterest. If ever there was a sign that thepharmacy regulator needs to take the leadand that the Medicines Act is in desperateneed of an overhaul, then surely, this is it!

So what is the verdict?We asked the CPS for a protocol that madeclear that police led prosecutions of

pharmacists for one-off dispensing errorswere not appropriate and where grossnegligence manslaughter had beenexcluded these cases should be handed toan authority that had the expertise to dealwith them. These cases should be handledby the pharmacy regulator as a professionaldisciplinary matter and not as a criminalprosecution.

However, what we got was not a protocolbut instead some non obligatory legalguidance which does not deliver thisobjective. What does not appear to beunderstood is that once the authorities areinvolved in trying to prosecute apharmacist, particularly when a death isinvolved, then emotive and subjectivefactors may drive criminal proceedings,even when gross negligence manslaughterhas been excluded. At that stage, it is easyto see how there may still be a tendency toovertly argue the public interestirrespective of the non obligatory ‘generalguidance’ contained in the new CPSpublication.

If ever there was any doubt about theextent the CPS will pursue their ‘suspect’,one needs only to study the report of theAppeal Court hearing.

There is nothingcontained in thisguidance to guaranteeanother ElizabethLee situation doesnot arise again.

Where to go from here?We need an urgent review of the 1968Medicines Act.

The MHRA continues to undertake thereview of the 1968 Medicines Act and thisis scheduled to be completed by 2012.However, the PDA will now be puttingconsiderable pressure on the governmentto accelerate its efforts in this area; weneed a much quicker change to the Act,even if only to the offending sections in theinterim. Whilst the prosecution threatpersists, pharmacists may be reluctant toparticipate in error log reporting, let alonebe keen to undertake new pharmacy roles.

We will seek to influence the timing ofthe review process and also its finaloutcome. With the detailedunderstanding of the 1968 MedicinesAct acquired for this case, we are wellplaced to express expert opinion for thebenefit of pharmacists. We are awarethat other pharmacy organisations arealso feeding in their views.

Further to that, we are set to discuss ourconcerns about the CPS legal guidancewith the government with a view ofsecuring some improvements.

Finally, we stand ready to defend anyother pharmacists from prosecution inthe event that the law is not changedfirst.

To comment on this article please go to www.the-pda.org/is/104

“We need a much quicker changeto the 1968 Medicines Act.”

“The guidance does not guarantee that anotherElizabeth Lee situation won’t happen again.”

The long awaited CPS Guidance

Find the pharmacy guidance at:www.the-pda.org/cpsguidance

Find the Feb. 2010 CPS Prosecutor’s Code at:www.the pda.org/prosecutorscode

www.the-pda.org insight summer 2010 |13www.the-pda.org| insight summer 201012

It was a messy affair involving severalpharmacists, resulting in the referral of oneof our past members (amongst others) tothe Disciplinary Committee at a time whenshe believed that she had retired from theregister before the Society had the powersto prevent it.

The case in question raises two verydisconcerting questions; firstly how can itbe justified that a referral to the disciplinarycommittee is in the public interest fordispensing errors which allegedly took placenearly five years ago (and by the time anyhearing is conducted is likely to be morethan six) and why does the regulator havethe arrogance to assume that it can enactits authority over a pharmacist whoremoved herself from the register beforethe Society assumed the legal powers toprevent her from doing so?

The former issue is a subject for another day,but why is the RPSGB relentlessly pursuing apharmacist, who retired from the Registermonths before it had any powers to stopher? Her resignation letter and receipt of hercertificate was acknowledged by the Society,but they refused to acknowledge that theyhad removed her name from the Registerand they continued to send a renewal andreminder notices. The PDA wrote more thanone letter to the Society reminding themthat the pharmacist had removed herself,asking them to confirm this.

The PDA received a letter four days after,but dated on the eve of the date on whichthe Society was to assume powers underthe new Section 60 Order 2007(presumably constructed in the knowledgethat the letter would be received afterpowers were assumed) stating that;

“Section 12 of the Pharmacy Act 1954provides for removal from the registerfor non-payment of retention fee. Inthese circumstances Council may directthe Registrar to remove the chemist’sname from the register. To date theCouncil has not directed me to remove[this pharmacist’s] name from theregister.

“I am unable to comply with yourrequest to confirm that [this pharmacist]has been removed from the register inaccordance with her requirements in herletter(s) of resignation.

Under the provisions of the Pharmacistsand Technicians [Section 60] Order 2007

and the Royal Pharmaceutical Society’s(Registration) rules made under theOrder, the power to retain a registranton the register if there is an ongoingfitness to practice investigation is madeexplicit. The relevant rules come intoforce on 30th March 2007.”

For the avoidance of doubt, the timelinesfor how this matter developed are detailedin the enclosed panel.

We believe that the Society deliberatelyprocrastinated until (in its belief) it was too

late for our member to do anything about itthus then claiming to assume the powers toinvestigate and possibly discipline her. Wefeel that this was an appaling abuse of itspowers. The PDA expressed its exasperationto the Registrar (zero minus one week);

“Quite apart from the above (the legalpoints), can you or the Society say whaton earth is to be gained by seeking todrag (this pharmacist) through the sheerhell of the Society’s regulatory machineat the end of her fine career (of whichshe was once proud) and at a time whenshe herself no longer wants to be amember of the profession or practicepharmacy? Are the interests of thepublic and [this pharmacist] not simplybest served by accepting that she ceasedto be a member upon her resignationand closing this matter?”

This cannot be light touch regulationSurely, this cannot be the ‘regulationwith a lighter touch’ that the government

architects of the Section 60 Order intended.

When will the RPSGB realise that it is notdealing with war criminals and in this case,a frightened elderly individual (now near anervous breakdown due to all this) and nowno longer dealing with the public, whosimply wants to retire. She has dedicatedmost of her life to fulfilling patients’ needs.

There are numerous other cases that thePDA has been involved in that prompt thequestion as to what sort of an unbalancedworld has the RPSGB’s version of ‘healthcareregulation’ given us in the hallowed nameof ‘public interest’? And what of the costimplications this all has for the rest of theprofession as it ends up footing the bill forsuch regulatory largesse?

PDA asks the GPhC to drop some ofthese casesIn September, pharmacy regulation will betaken over by the GPhC; their approachsurely cannot be worse than that of theRPSGB. Initial meetings with senior officialsof the new regulator indicate that they willbe more proportionate in their dealingswith pharmacists than the RPSGB regimewhich we have been used to. There arespecial provisions set out for transitionalarrangements in the Pharmacy (Section 60)Order 2010 to allow the GPhC to deal withoverlapping cases “in such other manneras it considers just”. We have urged themto look into long outstanding andoutrageous cases with a view to closingthem. We hope that they will bepredisposed to consider them humanelyand without damaging the public interestagenda.

Dr. Harold Shipman has a lot to answerfor. The ‘Shipman Enquiry’ producednew regulatory rules that now preventregistrants from resigning from theirrelevant professions register if they areunder investigation. The RPSGB is alsoable to use an Interim SuspensionOrder (Article 54), which gives theSociety the power to immediatelysuspend a person from practicing forup to 18 months, pending a fullhearing.

Before these new rules came into force inMarch 2007, we were not aware of anyRPSGB powers that could stop a pharmacistfrom resigning from the register if theychose to do so, whether underinvestigation or not. But now as a result ofthe introduction of the Order (pleaseforgive the irony) a proficient pharmacistwho forgets to pay their fees is removedfrom the register; but a pharmacist who isunder investigation and refuses to pay theirfees will not be removed or allowed toretire from the register until theinvestigation has been completed (unlessthe Registrar agrees).

The effect of this rule, is that if the allegedmisdemeanour is not sufficiently seriousthat it poses an imminent danger to thepublic and therefore avoids an interimsuspension order, then a pharmacist whohas not paid their registration fee cancontinue to practice as they remain fullyregistered.

The RPSGB – it stands out as aregulator!

It is againstthis backcloththat we wishto describethe lengthsthat theRPSGB will goto in pursuingan ordinarypharmacistwho hasserved theprofession withdignity for forty years and decided to(legitimately) retire from the professionbecause she was so distressed by themanner in which she was subjected to adisciplinary investigation.

Allegations made by patients to the Society(allegedly) encouraged by surgery staff fordispensing errors made in the health centrepharmacy triggered an investigationwhich lasted four and a half years.

Timeline Action taken

Zero minus five months: Initial letter of resignation sent to RPSGB with certificate.

Zero minus four months: PDA sought acknowledgement of receipt and removalfrom register - no response.

Zero minus three months: Pharmacist received renewal reminder

Zero minus two months: Pharmacist, through the PDA, sent another resignationletter requesting confirmation that she was now removedfrom the register - no response.

Zero minus one month: PDA sought proof of receipt and asked for confirmationthat her name had been removed - no response.

Zero minus one week: PDA again demanded confirmation

Zero minus twenty four hours: Letter written by the Registrar to PDA legal representativein which it states for the first time that she cannot beremoved and that they will assume powers to retain herunder the Rules of the Order which come into force thefollowing day

Zero plus four days PDA receives the letter dated March 30th from the Registrar

PDA asks the GPhC to drop some old RPSGB disciplinary casesHow can we justify this nonsense as being in the public interest?

RPSGB - a tough regulator

“what sort of unbalanced world has the RPSGB’sversion of healthcare regulation given us?”

has beenpleased with the progress ofits development over the pastyear, John Murphy, GeneralSecretary announced at therecent AGM in Birmingham on4th June.

“The PDA has continued to grow inmembership and in influence in thepharmacy profession. At the end ofMarch membership stood at nearly15,000, up considerably from theprevious year” he said.

The rate of progress is best demonstratedby the willingness of union members thathave put themselves forward for electionto the Membership Groups at the recentby-elections in April.

“Last year I reported that we needed toget more members involved in theMembership Groups as too much workwas falling on the shoulders of too fewpeople.” Mr Murphy told the meeting buthe was “delighted that the recent by-election has resulted in filling vacanciesto near capacity of eligible MembershipGroup representatives.”

The General Secretary further reportedthat PDA has taken on over 1500 unionrelated cases during the period betweenApril 2009 and March 2010 (approx. 30 perweek). Nineteen of these cases have madea claim in an employment tribunal, ofwhich seven have settled, two havewithdrawn and the rest are still in progress.The union has also acted as representativein nine cases for members negotiatingcompromise agreements.

Communications OfficerGraeme Stafford was elected to theExecutive Committee unopposed asCommunications Officer and has beencharged with ensuring that systems andprocesses exist to gather the ‘grass root’views and opinions of ordinary members.

Student/Preregistrationmembership.The Assistant General Secretary (Strategy)reported that discussions were ongoingwith the British Pharmaceutical StudentsAssociation (BPSA) to seek to create thestudent membership group of the PDAUnion. To-date these have led to a positionwhere the BPSA constitution has now beenchanged so as to facilitate jointmembership of both the BPSA and the PDAUnion.He felt that “this initiative will deliversignificant union and other benefits topharmacy students. It will also have theeffect of significantly increasing themembership numbers.”

Full minutes of the AGM are nowavailable on www.pda-union.org

PDA Union making “strong” progress

Membership Groups

To comment on this article please go to www.the-pda.org/is/105

Locum GroupBob Gartside - Chairman

Catherine Armstrong - Secretary

Lindsey Gilpin - Executive Rep.

Stephen John HadleyRichard EvansNaina ChotaiAndrew JukesKeith DavisDavid TyasOluwaseyi Fasogbon

Community EmployeeRichard Flynn - Chairman & Executive Rep.

Anthony SuttonBarry AllisonSushil SharmaJyoti SoodIhad KamalRandeep Tak

HospitalJohn Farwell - Chairman & Executive Rep.

Joanne HardingAsta PrajapartiJamie RichardsonBrian MacKenna

Primary CareKate HingstonStephen Inns - Temporary Executive Rep.

David AkroydStephen Riley

Student/Pre-regMatthew Crum - Executive Rep.

Abbas KananiJames Milner

www.the-pda.org insight summer 2010 |15

The revenue generated byMURs has become a veryimportant and substantialsource of revenue for somelarge organisations especiallywith Category M incomefalling.

Whilst many pharmacists agreethat MURs are a gooddevelopment for the profession,sadly, the obsession of somelarge organisations to treat MURsas a vital income generator hasled to many pharmacists beingharassed to deliver rigid targetsregardless of their achievability.

Since the last article on MURs inthe Winter 2009 edition ofInsight, the PDA has helpedhundreds of its members to dealwith unreasonable pressure frommanagers to perform MURs.

The PDA is aware of some tragiccases where pharmacists have buckled under relentless pressurefrom managers to meet targets and have even gone as far asresorting to falsifying company records to keep disciplinary actionat bay. Such activity cannot be condoned and is soon exposedthrough company audits, which ironically have been tightened dueto a rise in such cases. It is the view of the PDA that somecompanies may believe that the financial rewards generated fromtheir pharmacist workforce being “encouraged” to produce largenumbers of MURs are probably deemed by them to outweigh the“collateral damage” caused by some of their more vulnerableemployees being disciplined and dismissed when they succumb tothe pressures they are under and resort to ‘out of character’behaviour.

However, pharmacists should be encouraged by a number ofsuccessful experiences that PDA members have had in tacklingundue pressure from company managers. Employment legislationand company policies can give significant protection from bullyingbehaviour and this coupled with robust PDA Unionrepresentation has dealt a wakeup call to arrogantand bullying managers.

In order to help other pharmacistsrealise they have the power tostand up to their employer,we have detailed howsome of ourmembershave made theirworking lives alot easier.

Area manager receives a grossmisconduct verdict for aggressivebehaviourJohn was subjected to increasingly threatening emails about hisMUR performance over a period of six months. John’s areamanager refused to believe that he was doing all he could todeliver the MUR target; visits and communications from the areamanager became increasingly aggressive.

After contacting the PDA for advice, John was advised to keep adiary about his treatment and archive the emails he was sent. Johnwas determined to try and deal with the pressure he was facingwith as little fuss as possible and forwarded some of the worstemails to a senior pharmacist in his employer’s organisation in thehope that this would mean the area manager would stop bullyinghim. Unfortunately this inflamed the situation and the areamanager angrily remonstrated with John at his next visit for goingover his head. The bullying got worse after this and John agreedwith his PDA case manager that the only option was to submit aformal grievance direct to the pharmacy superintendent.

As part of the support provided to members, John was helped toconstruct and articulate his grievance by an experienced advisor

who also provided personal representation at the meetings.The pharmacy superintendent was provided with an

extensive dossier of information and John gave a fullaccount of what had been happening. John had

followed the PDA’s advice very closely, the evidencethat was presented was overwhelming and after a

number of witnesses were interviewed, thepharmacy superintendent upheld every point of

John’s grievance and agreed that the behaviour ofthe area manager was unacceptable and the emails

he sent were threatening and aggressive.

MUR Update ����

To comment on this article please go to www.the-pda.org/is/106www.the-pda.org| insight summer 201014

Mechanisms to deal with MUR bullying do exist.

John was then asked what he wanted as an outcome to hisgrievance and decided that due to the behaviour of the areamanager which appeared incapable of being rectified, he nolonger wished to work for him. As a result of the grievance, thearea manager was disciplined for gross misconduct and issuedwith a severe sanction, including having John’s store beingremoved from his area.

Non-Pharmacist store manager isdemotedAnother pharmacist had severe problems with her store managerpressurising her to complete MURs. This non-pharmacist storemanager even waited outside the consultation room and harassedthe pharmacist in front of patients to see if an MUR had beencompleted so that he could enter better figures onto his areamanagers report. The manager’s behaviour gradually got worseand culminated in some very offensive comments being made tothe pharmacist after the manager lost his temper with thepharmacist for not meeting the MUR target.

Like in John’s case the pharmacist was given extensive support toraise a grievance and was represented by a PDA union official atthe meeting to discuss her concerns.

As a direct result of the PDA’s intervention, the non-pharmaciststore manager was disciplined for gross misconduct and removedfrom his managerial position. Both of these examples show that byusing established employment processes along with support fromthe PDA, pharmacists can protect themselves from the bullyingbehaviour that seems prevalent in some organisations.

Developments at Co-opSome pharmacists employed by the Co-operative pharmacy havefound themselves invited to disciplinary meetings for failing tomeet the company target of two MURs per day. Some documentsseen by the PDA confirm that any shortfall in the MUR target onone day has to be made up on subsequent days. This approachclearly has the potential to place enormous pressure onpharmacists when workload or lack of suitable patients makes twoMURs per day an impossible goal to reach, let alone three or moreon subsequent days. As part of its support to members,experienced PDA representatives have been supporting members

who have been called to disciplinary meetings established byCo-op. Ahead of these meetings, they made contact with the HRadvisors supporting the disciplining managers in order to requestinformation needed for the members to defend themselves.The PDA is pleased to note that in every case where membershave come to us for advice about being disciplined by theCo-op for failing to meet MUR targets, the meetings havesubsequently been cancelled and the allegations droppedafter our intervention.

ADVICE ON HOW TO HANDLE

PRESSURE ON MUR DELIVERY

Pharmacists can help protect themselves frombeing disciplined for MUR performance byfollowing some simple steps and by seekingadvice from the PDA at an early stage.

• Don’t agree to a target that you know to beunachievable. Target setting should be a twoway process and the objectives agreed shouldbe realistic and attainable within the resourcesyou have.

• Always contemplate the professional andpatient interest considerations, you should onlybe undertaking an MUR when it is in thepatient’s interest to undertake one, this, and notemployer business driven targets, should definewhether an MUR is to be undertaken or not.

• Never agree to a rolling target where the nextdays target increases if the current days targetfor whatever reason cannot be met.

• If you are unable to reach a target without extrasupport, resources or training being providedby the company, it is essential that this isdocumented at an early stage and that this iscommunicated to your line manager.

•When circumstances outside your controlprevent you from reaching a target, make a noteof these for discussion at review time.

• If you experience bullying, harassment orgenerally unacceptable behaviour at work fromyour line manager, then keep a diary of eventsand retain copies of emails or othercorrespondence that will help you prove this ifneeded at a later stage.

• If matters start to get out of hand then makecontact with the PDA for advice as soon aspossible.

“As a result of PDA intervention, the non-pharmacist store managerwas disciplined for gross misconduct and removed from his

managerial position.”

“The PDA has helped hundreds ofmembers to deal with unreasonable

pressure to perform MURs.”

The law does not permit bullying in the workplace.

A friend in need is a friend indeed

An important threshold that the providers ofthese services had to reach before becomingpart of The PDA Plus portfolio is that theywould work in partnership with us. In otherwords, if we were to put services under thePDA umbrella, then the organisations thatprovide them must have similar values andmotivations for success to the PDA. In shortthey must have the individual and their needsat the heart of what they offer.

We now provide ways and means formembers to make significant savings on carhire, holidays, eating out, etc (which is dealtwith in more detail on the opposite page) andwe have a number of organisations thatprovide services which we see as vital if anindividual is going to practice with total peaceof mind.

Our partnershipwith PG

One benefit we are particularly proud to beassociated with is the Income Protection Planfrom PG (Pharmaceutical & General ProvidentSociety).

The consumer magazine Which? opens an articleon its website on “Income Protection; how does it work”very pointedly;

Millions of us have policies like critical illness, privatemedical insurance and payment protection, sold to usover the years by salespeople who convinced us weneeded protecting. However, whilst they were rightabout the protection, they were wrong about thepolicies. The one protection policy every working adultin the UK does need is the very one most of us don’thave - income protection (IP).

Do you believe that illness, accident or disability will, of course,never happen to you?

Currently 2.2 million people of working age will be off work forat least six months because of sickness and disability, andmore than 2.6 million people are claiming incapacity benefit(source: www.dwp.gov.uk).; so clearly it does happen and itcan happen very unexpectedly.

I was struck by a posting that I saw on Locum Voice - anelectronic community for pharmacy locums. The posting wasmade just after we had launched The PDA Plus brochure inwhich we brought our members attention to the PG IncomeProtection Plan. The ‘poster’ was a young healthy woman who

had a particularly nasty tobogganing accident and shared herdilemma with her ‘virtual’ colleagues.

“It was nearly a good start of the year for me, apart from asledging accident I’ve had on the 9th of Jan. My leg waspractically crushed from the knee down, I’ve about 5-6fractures plus a broken ankle. I’ve been in hospital ever since,I've had two operations, nearly missed some other ones...butnow I’m home. And wondering, how many of you people areinsured for income protection?

When I became a locum I took out PDA membership, and feltcovered enough. Being fairly young and able, nothing couldhappen to me to prevent me from working...so I never eventhought about taking additional insurance.

When I came back from hospital I was looking through myunopened mail and I found a brochure from PDA where theyasked: “In case of an accident, can you manage ongovernment Employment and Support Allowance?...”Well, I can answer that question now, and the answer is no, Ican’t manage on 60 quid a week, but how was I to know? Seethat destroyed woman with long hair in the picture who holdsher head in her hands while the husband looks at her from adistance? I could model for that, I’ve even got pain and truefeelings.

And since I have time, I wonder just how many locums areactually insured. Was I a fool not to get insured, or is itnormal?”

There was an interesting range of responses to her question,some admitting that they didn’t have cover but acknowledgingthat they were running a ‘risk’. Others told heart-warmingstories about how they came to use their IP plan to a very usefuleffect.

The PDA set up PDA Plus, our PDA member exclusive benefits package, so as to find arange of services that would save our members money and others that would be highlyvalued because they are complementary to pharmacists’ professional and work relatedneeds. John Murphy, PDA Director, reviews some of the services.

Food for thought?

There is still the myth however that such plans will not pay out toself-employed people however, this is not the case with PG whoalready work with many self-employed pharmacists. For those ofyou who think that your employer will give you sufficient sick paythe Which? article gave advice as to how to assess whether ornot Income Protection insurance is a requirement andsuggested that you ask these questions of yourself;

• Will your employer pay you a percentage of your salaryindefinitely if you are off sick?

• If not, and you are part of a couple, could you pay all thebills and live on your partner’s income indefinitely?

• If not (or you are single) do you have savings you couldlive off indefinitely?

It further went on to state that in its investigations it found thatthe vast majority of IP plans give only 50 or 60% of income backto the insured and that (all) policies pay out after you have beenoff work for a period of time known as the ‘deferred period’.The good news is that there are options for you to take out aplan with PG which will replace as much as 70% of lost incomeand they offer ‘Day One Cover’ – especially useful for locums.

In the early days of the PDA, one of our members found himselfin a difficult situation. He had had a brain haemorrhage whichhad kept him off work for some months.

Although the consultant signed him off as fit to do ‘work’ he didnot want to work as a pharmacist until he was convinced that he

could trust all his cognitive skills. It was sensible for him to‘work-shadow’ another pharmacist (in a non-earning capacity ofcourse) until he, and the other pharmacist were both satisfiedthat he was not a danger to the public. I am happy to say thatthe member made a full recovery.

His then insurers however, once he was pronounced fit to doany kind of work (e.g. stacking shelves in a supermarket ordelivering newspapers) no longer continued to pay out. PG, onthe other hand, can cover a pharmacist until they are able toresume their pharmacy career - one of the benefits of joining asociety which specialises in your profession.

The reason why the relationship between PG and the PDAworks is because we have two ‘like-minded’ organisations,both not-for-profit, dedicated to the needs of pharmacists.What works for us and our members, works for PG.

In addition to this, all PG’s policy holders gain a rare financialadvantage in the form of an investment element designed toprovide a cash lump sum for their retirement. As a mutualorganisation, any surplus is returned to the membership -irrespective of any claims that an individual may have made.Finally, as a PDA member, we have arranged for you to enjoya 15% discount off the first three years’ contributions.A friend in need is a friend indeed!

www.the-pda.org| insight summer 201016 www.the-pda.org insight summer 2010 |17

Over the next few Insights we will be looking at different ways that you can save the cost of yourmembership by using the services we offer through The PDA Plus scheme. In this article, we featuretheGourmet Society scheme, which is heavily discounted to members.

“Eating out is one of those luxuries that we are prepared to sacrifice when a recession bites.A survey conducted by market analysts ‘Buckingham Research’ found that three-quarters ofBritish families will stay at home during the recession rather than eat out at restaurants. Couplesand single people are also less likely to go out over the coming year.

One of the ways you can maintain your normal ‘eating out lifestyle’ with the added benefit ofsaving the cost of your PDA membership is by trying out the Gourmet Society scheme,which encourages you to eat out at least as much, if not more often for less.

Being a fee paying member of the Gourmet Society entitles you to two meals for the price of one or 25% off a meal includingdrinks (depending on the establishment).

I was rather sceptical so I tried it out for myself and the scheme, claiming that it has over 3,500 restaurants or eateries, threw upnearly 140 establishments within a 25 kilometre radius of my postcode in Nottingham. I was very impressed; not only were thereso many but there were a good quarter of them that I recognised and I had eaten out at a variety of those locations on at leasttwelve occasions over the last eighteen months or so.

I won’t need any encouragement to get enrolled on the Gourmet Society scheme because I could have saved at least £350 onwhat I had been billed in those restaurants over that period of time if I had known about it.”

Annual subscription usually costs £53.50, but you can join for just £24.95 and get two months extra FREE.

There are many offers available through PDA Plus which members will be well advised to research before making buying decisions; itcould save a lot of money. We have searched for the best companies to partner with and negotiated for the best price.

Where you see this symbol (nationalprice promise) the benefits we offer willbe as good as or better than you willfind anywhere else (conditions apply).

Go to www.the-pda.org to find outmore about

To comment on this article please go to www.the-pda.org/is/107

To find out more about income protection go to:

http://www.the-pda.org/pdaplus

I could have saved £350.John Murphy, PDA Director

Will my employer pay meif I am sick indefinitely?

www.the-pda.org| insight summer 201018 www.the-pda.org insight summer 2010 |19

The PDA recalls numerous meetingsgoing back over several years withsenior RPSGB officials, prior to spring2009, where it tried to push theSociety into acting on workplacepressures faced by pharmacists. TheSociety wasted several years as itcontinued to deny its very existencedue to what it claimed was a lack ofevidence.

So although it came out of the blue,the PDA cautiously welcomed theU–turn in the spring of 2009, whenthe Society announced that it wasnow to launch its WorkplacePressures Campaign.

This RPSGB initiative was launched in a highprofile PR campaign which at times almostappeared to indicate that the Society haddiscovered a shocking (and hithertounknown to anyone else) problem withinthe profession - that thousands ofpharmacists are suffering fromunacceptable levels of stress in theworkplace. The campaign was to bepersonally spearheaded by no less than theSociety’s President Mr Steve Churton.

Perhaps it is cynical of us to suggest thatthis new initiative had its route cause in thefact that within months the Society knew itwould be a voluntary body and needed toshow some (albeit belated) memberfriendly initiatives. It mattered not to thePDA what the motives were, what matteredwas that the Society had finally opened itseyes to this problem and we resolved in ourmembers’ interests to join the campaign.However, working with the Society on thismatter has proved very frustrating. Twelvemonths later, we are concerned thatdespite the hype, the Society’s words havenot been matched by meaningful deedshaving had plenty of opportunities to do so.

The results from the recent Chemist andDruggist and PDA annual salary survey showthat the stress levels endured bypharmacists at the coalface havesignificantly increased in this last twelvemonths, it is clear that the RPSGB’sworkplace pressure campaign has notdelivered.

Forget the spin and stickto the substanceThe annual review brochure of the RPSGBdescribes the work now being done by theSociety to recognise that work placepressure is one of the biggest concerns inpharmacy. Page 6 describes theorganisation of a major workplace pressureconference, it states that the RPSGB Councilhas called for support within the professionfor adequate rest breaks and finally itdescribes a ‘major report’ called‘professional workload’ which the Societyhas now published.

Whilst we welcome this work, it is just notenough. None of these developments haveresulted in improving the life of many, if anypharmacists at all. The PDA is still receivinghundreds of calls for help each yearprimarily because of excessive workload,and this is a growing trend also at thepharmacist support charity.

Judging by the smiling faces that populatethis year’s RPSGB annual review, it seemsthat some of our current leadership arecontent with progress. Perhaps they trulybelieve that their workplace pressurescampaign is the jewel in the crown of theirimproved member friendly credentials.

We believe that if the RPSGB is not part ofthe solution, then it is actually part of theproblem. The RPSGB must recognise itsfailings of the last twelve months and itmust learn the hard lessons from them.

What would help the situation is a morepractical course of action taken by theRPSGB. Let us not forget that it is still thepharmacy regulator (until at leastSeptember 2010), so it could flex itsregulatory muscles, however, it appearsreluctant so to do.

Failure to investigate anemployer that did notallow proper rest breaksIn September of 2009, the PDA submittedto the RPSGB a formal complaint calling fordisciplinary action to be taken against alarge multiple employer for, amongst otherthings, not allowing any proper rest breaks.However, the RPSGB refused to act, insteadit stated that;

“You anticipate that our investigationwill resolve a number of broadprofessional issues regarding employer’sresponsibilities and good workingpractices.We do not deny that such issues are aconcern and do need resolving, but wedo not believe that the inspectorate andthe RPSGB’s fitness to practice processesare the right and appropriateinstruments in achieving the outcomethat you are hoping for.”

Had the RPSGB taken disciplinary action, oreven instigated a disciplinary investigationagainst this large multiple, then this wouldhave sent a message to all those employerswho deny rest breaks to pharmacists. Thiswould have done far more to reduceworkplace pressure and introduce restbreaks than what the Society did –publishing a Council discussion paper thatcalled all employers to recognise restbreaks.

Failure to investigate asuperintendent over RPmemo to pharmacistsIn October 2009, when the RP regulationswere freshly launched, some employerswhere quite wrongly urging theirpharmacists to sign on as RPs from8.00am, when they started work at9.00am. This retrospective signing on wasa source of much concern and stress forpharmacists with many complaintsreceived by the PDA from members.

The PDA applied considerable pressure andthe RPSGB sent out advice to allpharmacists stating that ResponsiblePharmacists (RPs) may not retrospectivelysign on to allow the pharmacy to operatefrom 8.00am if they only arrived andcommenced their duties at 9.00am as thiswas not a lawful practice.

However, the superintendent of a largepharmacy multiple decided to send out aninternal memo to employee pharmacistswhich had the effect of telling them todisregard this advice because the employerdid not agree with the position of theregulator.

Imagine the intolerable stress caused topharmacists by being told one thing by theregulator and another by the employer.The PDA brought this to the attention ofthe RPSGB straight away, however, we arenot aware of any disciplinary measuresbeing taken against the superintendentpharmacist involved in this conduct, norare we even aware of any disciplinaryinvestigation being instigated.

Imagine if the RPSGB had indeed conveneda disciplinary investigation into this matter,this would have sent a forceful messageout to all pharmacists in positions ofauthority. The net effect of this would haveproduced far more impact upon reducingworkplace pressure than what the Societydid in fact do – which was to publish whatthe RPSGB calls a major report entitled“Professional Workload”.

Failure to act on the RPregulationsIn the summer of 2009, large numbers ofpharmacists were expressing seriousconcerns about the impending RPregulations. Many aspects of theseregulations had very obviously not beenthought out properly and consequently,they were not ready to be launched. Thiswas a source of much stress amongst thepharmacy workforce and more than 5,000pharmacists signed a petition calling for adelay to the launch of the regulations.Sadly, the RPSGB held a Council debate anddecided not to support this call for a delay.The Society decided that it would insteadseek clarification from the Department ofHealth so as to alleviate concerns.Clarification was to be sought about restbreaks, the legal position of which clashedwith the RP regulations.

However, far from securing clarificationfrom the department around rest breaks –the RPSGB instead secured clarification thatallowed pharmacies (mainly the largemultiples) to operate their pharmaciesbefore the arrival of the RP. These moves,whilst good news for the employers, wouldhave further increased the levels of stressand anxiety for RPs.

The PDA is already handling the first of anew breed of RP based civil, criminal andemployment sanctions against pharmacists(see feature on pages 6 and 7) simplybecause of the fact that the RP regulationshad not been properly thought throughand were implemented too early. All of thiscould have been avoided had theprofession stood united and the RPSGB hadbacked the calls of the PDA and manypharmacists for the delay to theimplementation of the RP regulations.

So where to from here?It is the view of the PDA that if theSociety wants to be a memberfacing body and that it isgenuinely concernedabout work placepressures, then itsactions shouldmatch itsstatedintentions.

The Society’scurrent reluctanceto flex its regulatorymuscles and to takeaffirmative action againstemployers gives the distinctimpression that it is anorganisation that prefers tosupport the agenda of the largepharmacy multiple.

There’s an old adage that says;“If you want to be a duck, then you haveto talk like a duck and walk like a duck.”

However, we believe that in the Society’scase, if it talks like a duck, but walks like alarge pharmacy multiple, then it will fail tosecure the trust and support of themembership that it so desperately desires.

There is now very little time left for thecurrent RPSGB leadership to use itsregulatory powers to bring some of thelarge multiples to account, in just a fewshort months, when regulation is handedto the GPhC, the RPSGB will lose thisopportunity forever. We have no doubtthat the newly elected boardrepresentatives that many PDA membersvoted for are alive to these issues andwould be desperate to act decisively.However, by the time they take the reignsof the RPSGB, the regulatory role of theRPSGB will have gone forever.

These next few months will thereforerepresent the last historic opportunity forthe Society to act decisively as a regulator.

We appealed to the RPSGB and itspresident at the recent AGM not tosquander what is left of this regulatoryopportunity, for if it were to act, thenit may yet persuade pharmacists that itis serious about truly trying to resolvetheir workplace pressures.

There is still time left - let us see if theydeliver.

“If the Society talks like a duck, but walks like alarge pharmacy multiple, then it will fail to

secure the trust of the membership.”

Workplace Pressures Campaign - Is the RPSGB the solution or part of the problem?

C&D – PDA survey results

Had experienced suicidal thoughtsin the past year

Had experienced stress in the past year

Had experienced pressure frommanagement in the past year

Had experienced intimidation fromcustomers in the past year

Had experienced trouble sleeping inthe past year

Said their employers did not providesupport for the above issues

4%

85% 62%

71% 52%

51% 26%

84% 93%

44%

Approximately a third of those who raised such issues said it had affected theservice they provided to patients.Several took the trouble to tell us that this effect included increaseddispensing errors and near misses, and poor quality MURs.

employedpharmacists

self-employedlocums

Question mark over RPSGB commitment

To comment on this article please go to www.the-pda.org/is/108

Pharmacist settles for £30,000 in unfair dismissal caseIn January 2010, Alliance Bootsannounced that it proposed to ceaseaccrual of benefits under the definedbenefits (final salary) pension schemewith benefits from that scheme(reflecting salaries and length ofservice at the date of closure of thescheme) being transferred to a newemployer.

In its place the company introduced a‘defined contribution scheme’ the finalbenefits of which will depend on thecontributions made by the employee(supplemented by the employer).

There are more than 1000 PDA membersworking at Alliance Boots and on theirbehalf we took issue with the followingmatters;

The current scheme wasnot in deficitThe final salary scheme had already beenclosed to new staff and as it was in surplus,there seemed to us to be no main reasonfor the company to change the scheme forcurrent members other than to takeadvantage of the current downturn in theeconomy to reduce its contributions to thepension fund and transfer greater risk fromthe employer on to the individual.

Financial implicationsOur members who were currently in thedefined benefits scheme could bedisadvantaged financially by being movedto the new scheme. Although thecompany state that pharmacists willreceive a contribution of employee toemployer of 1:2, this may not compensatefor the losses they would have accruedthrough staying in the original scheme.

The method used to closethe schemeHaving made a proposal to cease accrual ofbenefits under the scheme the method usedby the company to achieve this was in ouropinion and that of our expert advisors notillegal, but not within the spirit of the law.

The vehicle used by the company to moveemployees from one scheme to anotherwas TUPE -Transfer of Undertakings(Protection of Employees) legislation. Theoriginal purpose of this was to protectemployees’ rights when they have beentaken over by another employer; however

pensions are exempt from transferunder this legislation and by settingup a new company (a vehicle stillowned by Alliance Boots) andtransferring all employeesinto it, Boots had noobligation to transfer theoriginal, more preferentialpension scheme with theemployee. If the employee hadrefused to transfer to the new companythen potentially they could have beendismissed. We believed that this wasusing the TUPE legislation for purposes forwhich it was not intended. And franklywhat option did the employee have but toaccept it?

The consultationWe wrote to the Chief Executive of AllianceBoots setting out our concerns and theyhave set out to justify their consultationprocess. We have pointed out in reply that:

• Although the company was obviouslyhappy to consult with the ‘in house’Boots Pharmacists’ Association (BPA),it did not appear to wish to do so withthe PDA even though PDA has morepharmacist members than does theBPA.

• The company argued that it wouldhave been prepared to stop the reformof the scheme based on the results ofthe consultation process, but we findthis difficult to accept given the timetaken within which such a majordecision was made. This massivelogistical exercise involved consultingwith 45,000 employees, amending theproposals, getting applications madeto the new scheme and transferringeveryone to the new managementservices company. This could not havebeen done without many months ofpreparation yet executed in three tofour months (however, this timescaledid comply with the legal requirementsfor consulting with employees).

• We have asked why the TUPEregulations were used for purposes forwhich they were not intended, buthave received no response.

Members’ rights toreserve their positionWithin the process, there appeared to be nospace for contingency; this was a companywith a mission! Many of our affectedmembers were concerned and wanted toknow how they could resist the momentumand how to protect their rights. Werecommended that they should enter intothe new pension arrangement so as theywould not be disadvantaged but should“reserve their rights” to challenge theclause which made it conditional that theywaive their rights to any accrued benefitsfrom the ‘old’ scheme. This would create atrue test of the company’s flexibility.

However, Alliance Boots informed the PDAthat they would not accept any ‘reservingof rights’ and would deem suchapplications to be invalid thus makingmembers ineligible for entry into the newscheme from 1st July and that as aconsequence their death in service benefitwould be affected.

The PDA had taken expert, independentlegal advice at every step of the process andpassed it on to our members. We believethat our advice was appropriate andreasonable.

The PDA has reverted to the PensionsOmbudsman in the hope that they willmake a challenge. However, we have beenwarned that the likelihood of success islimited. Through our parliamentaryconnections, our hope is that in future, atleast the loophole in TUPE legislation can beclosed to prevent large employers usingTUPE in such a way.

The PDA awaits a response from thePensions Ombudsman.

www.the-pda.org20 www.the-pda.org insight summer 2010 |21

Many of the enquiries that we dealwith involve members alleging thatthey have been unfairly dismissed,however proving this is difficult as thesystem is very much stacked in theemployer’s favour.

There are six potentially fair reasons thatemployers can use to dismiss employees,one of which is ‘conduct’ and generallyspeaking, an unfair dismissal claim can onlybe brought if the employee has aminimum of one years’ continuous service.

In one recent case the employer relied onconduct as its reason for dismissing apharmacist. They alleged that he failed toensure adherence to the StandardOperating Procedures (SOPs) by staff.It was therefore not the conduct of ourmember that was being called intoquestion (something that he had done) butthe actions of others that he had failed tosupervise.

Two dispensers complained that ourmember did not carry out a clinicalassessment of some prescriptions andthey believed that they were handingout medication to patients contrary tothe SOPs.

Our member was adamant that he hadcarried out a clinical assessment of everyprescription and that there should neverhave been any occasions where thedispensers would have given medication toa patient without this being done. He wascertain that the staff must have beenmistaken and in the absence of any otherexplanation must have had a more sinistermotive in raising such a complaint.

During the disciplinary hearings, at whichwe represented the member, we wereappalled at the quality of investigation andasked for examples. No suchevidence wasforthcoming (not evena single example) andthe employer justifiedtheir action by saying itwas ‘commonoccurrence’. We pressedthe employer to ask thecomplainants whoseinstructions they hadbeen working under whenhanding out medicationthat had not beenchecked if thiswas indeed the

case; the employer chose not to establishthis information.

Our member was summarily dismissed andthe decision was upheld on appeal. Havingexhausted the internal process he broughta claim for unfair dismissal in theEmployment Tribunal (ET). The pleadingswere the lack of a reasonable investigationby his employer into the matter; thedifficulties encountered with being awayfrom the dispensary (on the employer’sinsistence) in the consultation roomconducting MURs for example; and the factthat the staff had been trained how todispense properly and had worked asdispensers for a number of years. If theywho had knowingly breached the SOPswere not disciplined, our member, whohad no knowledge of the breach, shouldnot have been disciplined either. He madeit clear that he was always in control of thepharmacy and had an understanding withtrained staff that all medication should bechecked by him with regards to the clinicaland accuracy check.

Our member had also submitted agrievance to his employer prior to thetermination of his employment which hadnot been dealt with until his dismissal. Itwas during the grievance investigationmeetings that the company eventuallysought to question the claims made by the

staff. Those staff who had earlier claimedto believe that they were handing out

medication which had notbeen checked by apharmacist now said that

they “did not know” if checkswere carried out. Unfortunatelythis was too late for ourmember.

In a game of brinksmanship, theemployer’s representativescontacted us with an offer of£30,000 to settle the case onehour before the close of play the

day before the tribunal.

As this case did not proceed to a hearingwe cannot be certain that if a similarsituation occurred the case would besuccessful at trial. Had the case comebefore a judge he/she would have had toconsider;

1. Did the employer have a fairreason for dismissal? (on conductgrounds)

2. Was a fair procedure used?(investigations, disciplinary andappeal meetings etc)

3. Was the decision to dismisswithin the range of reasonableresponses open to a reasonableemployer?

The latter point is perhaps the mostimportant of these and essentially relatesto the concept of fairness. This is where weconsider what the actions of a reasonableemployer would have been in thecircumstances. Put simply, the questionasked will be: Is it possible that areasonable employer, faced with thesefacts would have dismissed? It isimportant to bear in mind that where anemployee has already been subject tovarious stages of the disciplinary processsuch as warnings etc, it is not difficult tomake a case to dismiss.

This was not an issue in this particular caseas the pharmacist had an exemplaryrecord.

The action by the employer has significantimplications for those of you working asResponsible Pharmacists believing that youcan trust all your staff to follow the SOPs.The case also highlights the very realproblems that can stem from anemployer’s failure to conduct a reasonableinvestigation should staff make allegationsabout you and the low standard of proofthat dismissal requires.

“In a game of brinksmanship, the employer’srepresentatives contacted us with an offer

of £30,000 to settle the case one hourbefore close of play.”

To comment on this article please go towww.the-pda.org/is/110

To comment on this article please go towww.the-pda.org/is/109

Contesting the new Alliance Boots staff pension scheme

Who is trying to protect your pensionnest egg?

| insight summer 2010

www.the-pda.org| insight summer 201022

The Individual Pharmacist contractor a PDA Objective100 years ago, if you were a pharmacist,then you were likely to be an owner of apharmacy and consequently in businessin your own right as a pharmacist. As adirect consequence of this, ourpharmacist fore fathers establishedemployer led organisations like theNational Pharmacy Association, thePharmaceutical Services NegotiatingCommittee and the Company ChemistsAssociation to ensure that their interestscould be well looked after. Following thelaunch of the National Health Service,the pharmacy representative bodiesensured that contracts with the NHSwere established, so as to providepharmacy owners with a fair return ontheir investment. This was entirelyproper as the operation of a pharmacyrequires owners to invest and risk theirown funds in the physical facility and forthe expensive medicines which the NHSrequires to be supplied to the public.This is what one might call thetraditional ‘bricks and mortar’ NHScontractor model - so far so good.

A century later, there are major differencesin the pharmacy landscape. Today, morethan 90% of pharmacists are eitheremployees or self-employed locumsworking in the community, hospital orprimary care setting. Pharmacy ownershipis now dominated by large multiples andindependent pharmacy ownership isdecreasing. These days, the cost ofpharmacy ownership has put it beyond thereach of many pharmacists.

In addition to this, the role of thepharmacist is significantly different. There isno longer a need for pharmacists to bemanually involved in the ‘compounding’ ofmedicines. The very fabric of the pharmacyservice, which traditionally has been rooted

in the manufacture and supply ofmedicines, is now moving towards theprovision of services to the public and this iswhere the future lies.

And herein lies the problem, whilst it is easyto understand why the appropriate body toenjoy an NHS contract for the supply ofmedicines to the public is the owner ofpharmacy, it becomes less so if oneconsiders the provision of services. For,whilst the supply of medicines requires anddeserves a satisfactory return on its financialrisk and investment, the provision ofservices is largely a professional andintellectual investment that has to be madeby the person undertaking the task i.e. bythe individual pharmacist.

This then begs the question that if it is the‘bricks and mortar’ contractor thatreceives the payment from the NHS, thenwhat return does the individual pharmacistreceive on this intellectual investment andupon the associated risk of providing theservice?

It is our view that whilst the traditional NHScontractor model (seen in fig. 1), may wellwork for the medicines supply, it does notwork for the provision of services. This ismuch more than an issue of fairness, webelieve that the old ‘bricks and mortar’remuneration model causes a ‘disconnect’when the new services are being providedwhich results in problems for patients, forpharmacists and also for the relationshipbetween employers and pharmacists.(See fig. 2).

We are concerned that some employerssee these services as no more than a cashgenerator. Meanwhile, pharmacists at thecoal face who are actually delivering theservice will want to take a much greaterinterest in the quality and professionalintegrity of the service and theseconsiderations clash with the commercialprerogative. Sadly, because of the masterservant relationship that now dominatespharmacy, many employee and locumpharmacists are relentlessly driven to deliverMURs despite not being provided with anappropriate working environment (in termsof availability of support staff) nor, in manysituations, even having patients thatgenuinely need to have an MURundertaken.

We believe that unless this ‘disconnect’ isaddressed, then it will harm the agenda forrolling out future pharmacist led services.

We must accept that an importantrequirement of patients and Societygenerally, is that pharmacists, whoregardless of employer or environment canbe professionally independent in terms oftheir practice.

These are more than just theoreticalconcerns, the table below shows thesymptoms of this disconnect as they relateto the provision of MURs.

MURs not taken up widely

Complaints from GPs about poorquality MURs being received

Complaints from patients

Creative methods being usedto drive volumes

MURs being driven not by needbut by targets

So what do the employers say?Here are the contents of some companycommunications to pharmacists;

“Some pharmacists don’t agree thatMURs are part of their role – well guesswhat, at £27 a pop, MURs represent£10,800 bottom line – they are!”

“If your pharmacists still refuse or arenot hitting their MUR targets then theyneed to be managed accordingly. I needto understand, by close of play today,what you, as leaders of your businessesare going to do by 10.00am Thursday.”

“In my previous job before I becamearea manager I was targeted to sell tyresand I see no difference with targetingMURs.”

So what do the pharmacistssay?Here is a small sample of views that wehave had from pharmacists;

“I have been harassed by area managerswho phone me at home when ill due topregnancy demanding my return to thepharmacy to do more MURs.”

“Community pharmacy is all I have everwanted to do. However, ridiculous MURtargets have changed all that. Ifrequently feel inadequate and stressedabout it. I never thought that after fiveyears of training I could expect anemotional slap on the wrist for notachieving 12 MURs every week..”

“The stress placed on us from areamanagers in North Wales with regards toMURs is ridiculous. Constant harrasmentvia e-mail, daily phone calls etc is thenorm and we are made to feel like poorpharmacists if we do not conduct at least12 a week regardless of patient type.”

At the PDA, we believe in a fundamentalprinciple, that the closer the pharmacistsresponsibility is to the patient, the safer it isfor the patient and the better it is for thepharmacist. We also argue that theintellectual investment and risk taken by thepharmacist in the provision of servicesshould be rewarded by an appropriatereturn.

We want to see the creation of anindividual pharmacist held NHS contractwhich would be used to fund the provisionof professionally led services to patients. Weargue that if the correct WIN-WINarrangements can be made, then this newform of contract, held by individualpharmacists need not threaten the incomeof the traditional ‘bricks and mortar’contractor, indeed, if organised properly,then it could even increase it. If, forexample new services where provided byindividual pharmacists, but from thecommunity pharmacy setting, thenpharmacists could make arrangements to‘hire’ the facilities already provided by the‘bricks and mortar’ contractors such asconsultation rooms, appointment bookingservices and various other establishmentbased facilities. (See fig. 3).

These views have been discussed by thePDA for at least three years, however, everygood idea needs the right timing. It isencouraging to see that the idea of the

individual pharmacist contractor is nowgaining momentum. At the recent PDAconference in Spring 2010, the ChiefPharmacist for Scotland, Professor Bill Scottaddressed the PDA delegates and describedthe direction of travel in Scotland. Heindicated to PDA members that he was verysupportive of the PDA’s proposals.

According to Bill Scott, the currentpharmacy owner centred funding model,with its focus on prescription volume anddrug purchasing profits was a “ratelimiting step to pharmacists furtherclinical development”. It placed corporatevalues against those of individualpractitioners and lacked continuity ofpharmaceutical care. It created conflicts ofinterest and acted as a barrier to fullinvolvement with other healthcareprofessionals. “GPs insult you by callingyou shopkeepers and you wonder why itis an uphill struggle to develop theprofession. This problem exists becauseof the current contracting model.” Hesaid.

“There is a tendency to think ofprescriptions as pound notes rather thanin terms of patient outcomes.”

“I would like to see the contractseparated into two parts, both to bedelivered from a registered pharmacy.

The first would have the NHS contractingwith pharmacy owners for premises,stock, equipment and support staff. Thesecond would involve NHS contracts withindividual pharmacists to provide clinicalpharmaceutical services.”

Bill explained that the new model wouldboost pharmacists’ professionalism andindependence, would remove perverseincentives and by focusing onpharmaceutical care, would encouragepartnership working and ultimately supportcontinuity of patient care. This wouldprovide a strong basis upon which to builda future for clinical developments.

To the delight of PDA conference delegatesBill said “The ostriches must take theirheads out of the sand. The currentcontracting model is not fit for the 21stCentury so let’s widen the debate anddevelop the clinical and business model.By using our professionalism to putpatients first, we may come out withsomething better than what we havenow.”

In concluding the presentation, Bill invitedthe PDA to continue to actively contributeto the debate and to not only seek, but todemand a new individual pharmacist basedNHS contracting model for all pharmacistsin the UK.

Where to from here?In its mission to establish this new kindof NHS contract, PDA members areurged to use every opportunity toinfluence those that they can so as toassist with the development of thisprogramme. For the PDA to be successfulin its central discussions with thegovernment and others, thenpharmacists at the coalface must believein and demand the opportunity todevelop this new concept and create thegroundswell of opinion. With the newfinancial situation facing the nation, webelieve that the time is right to engineera situation where through a fundamentaladjustment to the flow of NHS funds, theprofession can deliver more for patientswith improved value for money.Indeed, such discussions have alreadycommenced. Please watch out for detailsof our activities and any specific calls formembership support.

www.the-pda.org insight summer 2010 |23

The traditional NHS Contractual model

£ £

UK Pharmacies

The Public

Supply

Pharmacists

NHS

Today’s NHS contractual model

£ £

NHS

Proposed NHS contractual model

£ £

NHS

£ £

NHS

The Public The PublicWin

Win

WinPharmacistsUK Pharmacies

The Public The Public

‘disconnect’

PharmacistsUK Pharmacies

Fig. 1

Fig. 2

Supply Services

Fig. 3

Supply Services

To comment on this article please go towww.the-pda.org/is/111

Professor Bill Scott, Chief Pharmacist for Scotland

PDA219/0710

IS IT WORTH ACANDLE?Some employers say “our indemnity insurance willprotect you if an error occurs”, but can you trust themto robustly defend your reputation?

Protecting an individual pharmacist, in the event that something has gone wrong, requires thespirited defence of that individual. The PDA is solely focused on the pharmacist and does notconcern itself with protecting the employer. In some cases, we even draw attention to theliability that should rest with the employer.

So what is the value of your employer’s promise to provide defence?

How can their defence offering ever avoid the conflict of interest that exists?

What is the likelihood that employer funded indemnity lawyers would act in a way that isdetrimental to the interests of the employer?

What use is employer’s protection where;

• You resign or are dismissed by your employer?

• You make an error because the employer’s pharmacy protocols or staff are at fault?

• You argue in the Court of Appeal that only employers can commit the Medicines Act offence?

If ever there was a time for pharmacists to havetheir rights protected – then that time is now!

� More than £650,000 compensation already secured fromemployers who have treated pharmacists unfairly or illegally

� £500,000 worth of Legal Defence Costs insurance

� £5,000,000 worth of Professional Indemnity Insurance

� Union membership option available

13,000 pharmacists have already joined the PDA.

Visit our website:www.the-pda.org

Call us:0121 694 7000