There is so much going on in the pharmacy sector at the moment, it’s difficult to keep up with it. You may have read this post about the Pharmacy Action Plan 2016-2020, and you will most certainly have heard about the PACT project. The implementation of the PACT will bring about fundamental changes in our practice. It will help make use of the pharmacists most valuable skills by enabling the delegation of the demanding and time-consuming task of accuracy checking. But, of course, many of you are worried about the idea of allowing technicians to do the final checking of a prescription.
The Question of Responsibility
What isn’t the pharmacist’s responsibility in the pharmacy?
One of the most intriguing questions about the idea is this: Who is responsible if the checking technician makes a mistake and the wrong medicine is given to the patient? The pharmacist or the technician? I’m sure this question occurred to other pharmacists as well. Perhaps the reason for many pharmacist not buying into the idea of implementing the PACT in New Zealand is that they answered the question with the pessimistic, albeit rational, “Of course, the pharmacist will be responsible, duh!” True enough, because what isn’t the pharmacist’s responsibility in the pharmacy? Well, let’s find out!
We are told throughout our professional lives so many times that it’s imprinted on our brains: the pharmacist is ultimately responsible and accountable for all the services provided under their supervision. And because of this, we are driven to participate directly in all those things we are responsible and accountable for. One pharmacist told me once that, when she checks tablets in a bottle, she always pours them on the counting tray to make sure that all pills are the same and no wrong ones have been accidentally mixed in with the lot. Because how can you take responsibility for something you didn’t see with your own eyes?
The answer is that you have to have trust in your colleagues. Technicians are trained to competently dispense and those that have the best skills may become checking technicians. You should already have a great deal of trust in them. Those same colleagues are the ones that, in time, may become your checking technicians. The more training your staff has the more tasks you can confidently delegate to them.
Do What You Do Best
If you want to work at the top of your scope, you need your technicians to work at the top of their scope as well
The same Code of Ethics that requires that we be responsible and accountable for the actions of those who work under our supervision (see Principle 7.1), calls on us to take steps to foster our professional relationships with our colleagues (see Principle 4.2). If you want to work at the top of your scope, you need your technicians to work at the top of their scope as well. I believe that the PACT is the way to go and I could go on and on why that is, but I don’t want to digress too much, so suffice to say that pharmacists are trained to provide a high level professional service to their patients where they make best use of their clinical knowledge, but in reality we are bogged down by a lot of technical stuff and have almost no time left to talk to our patients. We need to let go all the clinically unimportant tasks, we need to let our technicians do as much as they can to help us do what we do best. The dispensing process has a lot of clinically irrelevant steps and we must eventually delegate all of them. This includes the accuracy checking, so let’s go back to the question of responsibility.
We have to be prepared that mistakes will happen because we are humans and humans make mistakes. So what happens if the checking technician doesn’t pick up a dispensing error and the wrong medicine is given to the patient without the supervising pharmacist’s knowledge, resulting in some kind of harm to the patient? In answering this question I won’t go into the complaints procedure, I will concentrate only on the question of responsibility. Further, because the fundamental principles of the PACT framework require that the clinical screening of the prescription and patient consultation are always done by the pharmacist, there can be no question that the pharmacist remains responsible in all clinical aspects of the process. The focus of the discussion, therefore, is the responsibility for the accuracy of the dispensing.
An Important Exception from the Rule – A Landmark Case
Ordinarily, when a technician carries out the dispensing, the pharmacist is able to have a look at the medicine and ascertain the correct selection of drug, dose, quantity etc. In such a case, it is quite straightforward to apply all the relevant laws, regulations, codes and standards (there are so many of them!) that require that the pharmacist oversee the process and accept full responsibility by signing the script. In fact, you’d think that it’s so straightforward that there is no exception from the rule. Because, as you might say, if your technician makes a mistake that you don’t pick up, it’s your fault, either for not properly overseeing the dispensing or just simply not noticing the mistake in front of you. And we could almost leave it at that, if it wasn’t for the Risperidone-prednisolone swap case (06HDC01037). Many of you will have heard about this landmark case and you may even know why it’s so significant. Now, let me explain why it is so relevant to our discussion.
The story, in a nutshell, is that a prescription for a child for Redipred (Aspen Pharmacare) was dispensed by a technician who, instead of grabbing a bottle of Redipred, took Risperdal (Janssen-Cilag) off the shelf, poured the contents into a mission bottle, discarded the stock bottle and, for unfathomable reasons but without malicious intent, placed an original Redipred stock bottle next to the mission bottle. When the pharmacist came along and saw the original Redipred bottle next to the mission bottle, concluded that the right product had been dispensed, and unwittingly approved the erroneous dispensing. The child was later given a dose of the wrong medicine and ended up in hospital. The parents then brought the issue before the Health and Disability Commissioner.
The Commissioner thought long and hard, and gave a very thorough and informative decision, from which we can learn a great deal. Now, for the sake of completeness, I must mention that the decisions of the Commissioner only have persuasive force in respect of future decisions. Nevertheless, it would require an extremely strong argument for the Commissioner to deviate from such a thorough and well reasoned decision. All things considered, we can be quite sure that this case will significantly influence future cases.
The complaint was brought against the dispensing technician as well as the pharmacist who checked the dispensing. The Commissioner acknowledged the traditional view that generally the pharmacist should be held responsible for the actions of the technician working under her supervision:
There is a strong suggestion that whenever a pharmacy error occurs, it must be the responsibility of a pharmacist; as such I am generally more hesitant to suggest that a technician has departed from an acceptable standard of care.
However, taking advice from a legal expert and carefully reviewing previous decisions, the Commissioner decided that the facts of this case were such that the technician could not be excused from being held accountable. Furthermore, the pharmacist was found to have done everything that could be expected of her, therefore did not breach any of her obligations:
I do not believe it would be fair […] to find that [the pharmacist] failed to provide a reasonable standard of care.
The pharmacist may be excused from being held responsible
So, the first thing to learn from this case is that it’s entirely possible that a technician is held responsible for a dispensing error while the supervising pharmacist is not. Granted, in an ordinary dispensing-checking arrangement it does take some extraordinary circumstances to warrant such a conclusion. But you can see now that, in a PACT scenario, if the technician makes a mistake, there is some chance for the error to go unnoticed by the pharmacist, in which case the pharmacist may well be excused from being held responsible.
Liability of Pharmacy Technicians
Technicians are liable to being investigated by the Commissioner
The second important thing we can learn from the above case is that there are indeed serious consequences for a pharmacy technician, should they be held responsible for a dispensing error. First, it has been clearly established that pharmacy technicians are service providers under the Code of Rights, so the Code applies to them. They are also obliged to comply with the pharmacy’s standard operating procedures. Looking at past decisions of the Health and Disability Commissioner, dispensing errors generally warrant a finding of breach of Rights 4.1 and 4.2, that require that health services are provided with “reasonable care and skill” and in compliance with the relevant standards of practice. Consequently, technicians are liable to being investigated by the Commissioner and may be held to be in breach of the Code of Rights.
The DP may issue proceedings before the Human Rights Review Tribunal
Following an investigation, the Commissioner can make a wide range of recommendations to the person who was found to be in breach of the Code. Recommendations are always tailored to the case and may include the making of a written apology to the patient, undertaking extra training, paying some of the costs incurred, etc. In certain cases the Commissioner may refer the case to the Director of Proceedings (DP), who then makes an independent decision whether to take further action. In case of pharmacists or other health professionals, the DP may lay a disciplinary charge before Health Practitioners Disciplinary Tribunal (HPDT). However, the HPDT has no jurisdiction over pharmacy technicians, because they are not registered under the Health Practitioners Competence Assurance Act. But there is still one option left for the case to progress further, as the DP may issue proceedings before the Human Rights Review Tribunal (HRRT). The HRRT may make any order any relief it sees fit, including damages up to a whopping $200,000.
In the case I mentioned above, the DP issued proceedings and the matter went before the HRRT, which declared that there indeed was a serious breach of the Code of Rights, but the DP stopped short of asking for damages in the end. It seems that by the time the case reached the HRRT, the technician had been pretty much crushed anyway. The Tribunal was sympathetic to her as she had “suffered significant adverse consequences as a result of the mistake”, otherwise I’m sure that the Tribunal wouldn’t have hesitated to award damages, had it been pursued by the DP.
However, I think that this decision of the HRRT isn’t just significant for what it says but also for what it doesn’t say. The Tribunal found that the technician was in breach of the Code of Rights, when it could have excused her. The decision doesn’t say that the supervising pharmacist should bear the consequences. It could have concluded that technicians work under supervision, therefore they shouldn’t be found liable. But it doesn’t say that. Instead, the HRRT reaffirmed the Commissioner’s finding in this respect.
What’s All This Mean for the PACT?
To sum it all up, the answer to the big question is that it is entirely possible for the supervising pharmacist to be excused from responsibility if an accuracy checking technician makes a mistake. Further, depending on the circumstances and the seriousness of the error, the technician may face serious consequences.
The PACT Information Pack that was sent out to all PSNZ members states that the PACT Advisory Group that will oversee and manage the PACT framework will also maintain a register of certified checking technicians. Arguably, this makes the Advisory Group’s role similar to that of a licensing authority in respect of a complaint that goes before the Health and Disability Commissioner. Therefore, the Commissioner should be able to notify the Advisory Group of a particular issue and perhaps make recommendations in relation to the certification of the technician involved. In other words, the technician’s PACT certification may be on the line if a serious mistake is made.
No doubt, final accuracy checking puts technicians into a position where they haven’t been before. The prescribed training and certification is necessary so that they are up to the task. But, inevitably, more responsibility involves a higher level of overall risk. So let me conclude by pointing out that the pharmacist is still in charge. We still have to supervise all activities and make sure that everything goes well. The fact that technicians have independent responsibility does not excuse us from that of our own, because we have an overarching duty to prevent harm to the patient and optimise their health outcomes.
PS:
One more thing, just so that you keep on thinking about this. We are obliged by the Code of Ethics to ensure that appropriate indemnity arrangements are in place for all of our professional activities (Principle 7.3). Shout out to the PDA for having our backs and being there for us. But if my analysis is correct, we, as supervising pharmacists, are expected to make sure that our checking technicians have some indemnity arrangement of their own to cover their activities as well.
