On Friday, Chemist+Druggist (the community pharmacy sector publication) asked me to write a blog about the new two-part Community Pharmacy Pandemic Delivery Service, which I have been talking about on Twitter over recent days. An abbreviated version of what follows has now been published by Chemist+Druggist.
On the evening of Friday 10 April, NHS England & Improvement published details of the first extra commissioned service and funding for community pharmacy responding to the current pandemic (aside from a £300 contribution to the installation of physical barriers last month). I’ve previously written a detailed overview of the new service, which appears here.
My concerns about the new service broadly fall into two categories – (1) vicarious liability for the actions of volunteers and (2) the potential difficulty in actually getting paid under the terms of the service.
Throughout the service specifications for both the essential and advanced elements of the service, NHS England and NHS Improvement have emphasised that volunteers must be used to deliver patient medications wherever possible and that paid delivery by the pharmacy under the advanced service is a remedy of last resort.
Although pharmacy professionals have no input to or control over the enrolment of the volunteers who will deliver patient medicines, the burden of ensuring that a volunteer is an “appropriate person” to deliver medicines to the homes of vulnerable patients has been placed squarely on pharmacists – the service specification provides that “the pharmacist must be satisfied that the volunteer is an appropriate person to deliver medicines to the patient”. How are pharmacists supposed to make this assessment, particularly in a matter of moments?
And what responsibility do pharmacists carry for the actions of the volunteers they’re required to entrust with patient medications, including Schedule 4 and 5 Controlled Drugs? Vicarious liability is the rule of law under which a principal (such as, but not limited to, an employer) may be held responsible for the actions of someone else. It is possible (if not in fact likely) that a pharmacist could find themselves facing a claim from a patient as a result of an error or wrongdoing by a volunteer. Perhaps cynically, I suspect that NHSE&I may have imposed an obligation on the pharmacist to be satisfied as to the appropriateness of the volunteer because that increases the pharmacist’s degree of control over the volunteer and therefore, in legal terms, makes it more likely that a court would find the pharmacist vicariously liable for the volunteer’s actions.
As a result of concerns expressed regarding this potential liability, on Wednesday the Royal Pharmaceutical Society and General Pharmaceutical Council issued a joint statement, asserting “Pharmacy professionals acting in accordance with the standards and using NHS Volunteer Responders in good faith in line with the service specifications of the Pandemic Delivery Service will not be regarded as responsible for actions of other people outside of their control”. This statement was intended to be reassuring and was clearly made in an effort to support pharmacy professionals. However, in legal terms, it was simply not correct. After reading the statement, I contacted the RPS and GPhC to highlight the issue and explain that the legal position with regard to vicarious liability is complex and nuanced and, in any event, something on which a court (rather than the RPS or GPhC) would have to adjudicate. To their credit, within 24 hours the RPS and GPhC amended their joint statement to make clear that they meant only that the GPhC and RPS would not consider a pharmacy professional responsible for the actions of a volunteer (and would presumably therefore not pursue e.g. fitness to practise proceedings arising from such actions).
Hence the issue of vicarious liability for the actions of volunteers remains very much a live concern. Under the terms of the Coronavirus Act 2020, the Secretary of State for Health could introduce a system of indemnity to cover pharmacy professionals in respect of legal claims arising from services such as the Community Pharmacy Pandemic Delivery Service. However, no such system has been implemented to date. Pharmacists are exposed – unfairly, in my view, and at a time when they have neither the time nor funds to set about exploring insurance cover in respect of the actions of volunteers.
My second significant concern about the new service relates to the improbability of a pharmacist being able to both follow the guidance issued by representative bodies including PSNC, the RPS and NPA regarding use of volunteers and then actually get paid under the terms of the service.
The guidance issued by all three bodies advises pharmacists to ensure that any volunteer used has a recent DBS certificate. This is eminently sensible advice. However, NHS Volunteer Responders are not DBS checked. Only those NHS Volunteer Responders performing patient transport roles are required to hold a DBS certificate.
The service specification for the new service emphasises (repeatedly) that the £5 & VAT delivery fee will only be paid to a contractor where no volunteer (either a local volunteer or a NHS Volunteer Responder) has been available to assist. If a contractor adheres to the advice issued by PSNC et al and rejects a volunteer on the basis that they do not hold a recent DBS certificate, will their claim for the £5 & VAT fee subsequently be rejected? As currently worded, the service specification does not permit a pharmacist to reject any appropriate volunteer who is available to assist, including those non-DBS-checked NHS Volunteer Responders. The pharmacist is placed in an impossible position. I believe that NHSE&I need to either amend the wording of the service specification, or provide an assurance that only those volunteers who do hold DBS certificates will be allocated to pharmacy delivery tasks.
Before concluding, I would like to emphasise that I recognise that 99.99% of people who have volunteered to help during the pandemic are the very best and most altruistic members of society. In many ways it feels churlish to express concern about their efforts. My concerns about the new service may come to nothing and I certainly hope so. However, as lawyers we consider risk and the potential risks arising from the new service are, unfortunately, considerable. Ultimately, pharmacists are being asked to participate in and take responsibility for sending unchecked individuals to the home addresses of vulnerable individuals, conveying Controlled Drugs. Although the current pandemic requires some deviation from normal practices, is this service just a bridge too far?