1 Professional negligence Joy Wingfield Short residential course Session 6 May 16 th 2006

2 Learning Outcomes At the end of this session, you will be able to –Describe how clinical negligence applies to pharmacy –Explain the concepts of vicarious liability and professional indemnity –Devise examples of heightened liability in developing pharmacy practice

3 Can I be sued? Pharmacists, technicians and duty of care Responsible pharmacist under Health Bill Anyone if have breached a duty of care Litigation almost always addressed to the “deepest pockets”

4 When is there a duty of care? When lack of care can cause harm –Someone drowning in the canal? –Lifeguard on duty at swimming pool? Duty depends upon relationship –Pharmacists and staff will have such a duty when working in a professional capacity –Relates to advice, information, supply, service …… any intervention

5 Legal tests The harm must be foreseeable There must be a sufficiently proximate relationship between the parties It must be just and reasonable to expect such a duty

6 Nature of duty of care First establish the expected standard of care –What should the pharmacist have done? –Fully competent on day of registration or retirement –Due diligence –Specialist expertise Then determine whether conduct fell below the standard

7 Where do we find standards of care? Case law in the civil courts National Service Frameworks Clinical Governance expectations Code of Ethics and associated guidance, standards and practice advice Law and ethics bulletins Council statements Judgements from the Statutory Committee

8 Changing standards Exercise Working in pairs, discuss and share with the group –at least three areas of pharmacy practice where standards have changed over the last decade or so –The reasons why these changes have occurred

9 Causation Difficult to prove if –Multiple morbidity –Terminal care patient Cannot be sustained if patient did not actually receive medication –Tend to make ex gratia payments –No admission of liability

10 Vicarious liability Vicarious – experienced indirectly Vicarious liability – exercised by one person on behalf of another Employer is vicariously liable for actions of employees –If carrying out employer’s requirements –In accordance with employer’s specifications

11 Professional indemnity Employer’s liability extends to those harmed by employee’s actions Does not extend to –Self employed locums –Consultants –Professional defence –Employment disputes

12 New roles, new responsibilities Exercise Working in pairs, discuss and share with the group –At least three areas of pharmacy practice where new roles would lead to new responsibilities and hence new possibilities of liability for harm

13 Questions?