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P3pharmacy gets a lawyer’s perspective

The Royal Pharmaceutical Society’s (RPS’s) decision to offer professional liability insurance as a member benefit generated headlines in May.  

RPS president Paul Bennett, who has since declared his intention to depart once the Society completes its transition to royal college status next year, said at the time: “By removing the barriers posed by uncertainty around liability, we aim to enable our members to practise at their full potential. This insurance supports safer practice and reflects our dedication to supporting pharmacists to deliver the highest standard of care for patients.” 

The Aon-run liability scheme is undoubtedly cheaper than rival products, but some voices in the sector are concerned that the contingent cover model it uses – in which an employed practitioner’s professional liability insurance steps in as a back-up when their employer’s insurance does not respond – offers less ironclad protection than if that practitioner has taken out a scheme under their own name.  

Solicitor and insurance law expert Joanne Staphnill recently spoke to us to share her views. She said: “It’s completely appropriate and acceptable to say that contingent employer indemnity can satisfy the regulator’s requirement that there is adequate and appropriate indemnity cover in place. 

“It can do – but it doesn’t necessarily. It all depends on a combination of what the employer’s insurance policy terms and conditions are, combined with the exact terms and conditions of the contingent indemnity – as well as the circumstances of the claim.” 

She explains that work carried out as part of a pharmacist’s employment will be assessed differently from “something more informal, like giving advice to a friend that goes horribly wrong”.  

Staphnill points out that the General Pharmaceutical Council makes crystal clear that it is every pharmacist’s personal responsibility to make sure they’re covered – “it’s not enough to just take it on trust and say, I’m sure my employer has sorted this out”.  

Questions for employees to ask include, what is the limit of indemnity? “The employer’s limit of indemnity might be completely adequate for the majority of claims but not for the very biggest claims, like giving the wrong medicine to a baby and causing lifelong disabilities as a result. 

‘The pharmacist really needs to think about what sort of patients they’re seeing. And they don’t know what advice their employer is getting about what an adequate level of cover is for a particular field of practice.”  

Disagreement could also arise in cases where a pharmacist believes they were carrying out tasks that had been agreed with their superiors but which the employer believes was outside the agreed scope of work, says Staphnill.  

“The contingent insurance will pick it up, but you’ll have to have had that debate before it comes online – so there’ll always be a lag because you’ve got to hash it out first,” she claims. “It’s very inconvenient for a pharmacist to be left in limbo.”  

It’s much easier if the pharmacist has their own indemnity arrangement under their own name, she believes.  

More seriously, Staphnill believes that contingent cover can leave pharmacists more exposed to regulatory hearings – which “can be much more personally impactful on the registrant” than the claim itself.

For example, to protect their company’s reputation a business owner may try to apportion blame in a way that does not reflect the pharmacist’s version of events. 

“They may want to say, we’re an excellent pharmacy but the pharmacist went rogue. The injured person might think, if there’s this dangerous rogue pharmacist knocking about surely I should report them to their regulator. At that point, reputationally speaking, the pharmacist has been thrown under the bus. 

“If the pharmacist is being supported by somebody independent from their employer, they can look at it objectively and offer counterarguments, for example pointing out any systemic problems in the workplace that contributed to the context in which an error was made.” 

Pharmacists’ Defence Association (PDA) chair Mark Koziol, who stood down from the RPSGB council and set up the PDA over his horror at the handling of the 1990s ‘peppermint water’ case involving a pre-registration trainee at Boots, says: “I am constantly surprised by how quickly the relationship between employer and employee can deteriorate when a critical incident occurs.  

“Even if there has been a previously long and trusting relationship between the employer and employee, it is remarkable how quickly this can change when the stakes get high.” 

He claims that in “dozens of cases” the PDA has been able to help members avoid having to go before the GPhC’s fitness to practise committee.  

The RPS declined to give detailed responses to questions put by P3pharmacy, but did say it has had “very positive feedback from members” and that it believes contingent cover offers “adequate” protection for all employed pharmacists.