insightThe magazine of the Pharmacists’ Defence Association

summer 11

Also inside

Why hospitals should be exemptedfrom the RP regulations

Hospital EditionIS IT WORTH ACANDLE?Some senior hospital managers say “Don’t worry, theTrust’s vicarious liability will cover you”, but can yourely on the Trust to robustly defend your reputation?

Protecting an individual pharmacist, after a serious incident, requires the spirited defence of thatindividual by an organisation experienced in pharmacist defence. The PDA is solely focused onthe pharmacist and does not seek to protect the employer. In some cases, we even drawattention to the liability 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 an employer would fund a defence strategy for a pharmacistthat may be detrimental 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 Trust’s 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 £800,000 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

PDA237/0711

PDA challenges Guild

Questions over Guild policy onPI insurancepages 22-23

Tackling band changes

The impact of NHSrestructuringpage 4

Walking through a storm

Will your employerprotect you?pages 10-11

Employment Tribunal

Pre-reg awarded £35,000page 17

PDA challenge toGuild policy onPI insurance

| insight summer 2011 www.the-pda.org2 Visit our website www.the-pda.org

Exasperation on behalf of pharmacists is a frequentfeature of life at the PDA. Experiencing first hand theextreme approach taken by the old regulator - theRPSGB in putting thousands of pharmacists through theFitness to Practice machine, or being directly involved inthe ordeal of Elizabeth Lee or dealing with thefrequently unfair treatment of pharmacists by certainemployers; all these experiences and many more besidesleave a bad taste in the mouth.

These harsh experiences have taught us two things;

1. It is vital for pharmacists to practice with the protection ofthe very best and the most spirited defence that they canpossibly assemble. Pharmacists owe it to themselves and totheir families to make sure that if problems occur they canrely on rock solid support.

2. Whenever and wherever possible, avoiding the risk ofproblems, of prosecutions, of regulatory activity oremployment conflicts in the first place is a far morepreferable route than having to go through the painfulexperience of having to organise the defence of one’sreputation.

We continue to be exasperated by some of the policy decisionsbeing taken by the Guild of Healthcare Pharmacists.

Many pharmacists will recall that in 2009, a classic example ofwhere the risks being faced by pharmacists could have beenreduced was when three months before the launch of the RPregulations, the PDA called upon the government to delay thelaunch so that they could be made workable first. We knew, fromsurveys that pharmacists and employers were not ready for theirimplementation. We were concerned that significant newrequirements being placed upon pharmacists were simplyunworkable – especially in the hospital setting. The new RPregulations introduced new professional and criminal offences forpharmacists, increasing their exposure to risk. We were notisolated, our call was backed by more than 5,000 pharmacists in apetition. We were aware that the government had some sympathywith our call for a delay, but that it also needed to hear from otherpharmacy organisations. As the minutes of the RPSGB Councilmeeting in the summer of 2009 will show, when the RPSGB askedthe Guild what it thought, it was told that they were not in supportof a delay. We will never know how differently things might havelooked, or even at all, had the Guild backed the PDA’s position.

What we logically assume, is thatthe additive effect of severalorganisations refusing to back acall for a delay in the regulationsprobably contributed to thesituation where the RPregulations were not delayed.Tens of thousands of pharmacistsfaced exposure from criminaland professional sanctionsthrough regulations that wereunworkable and which therefore represented an unacceptable risk.

The PDA has since persuaded the government to review the RPregulations, but this has taken two years. The review is nowunderway and will continue into the autumn. On pages 6 to 8 wedescribe the PDA’s draft proposals on RP and supervision. One ofthese proposals is that due to the complete unsuitability of the RPregulations for the hospital setting, hospitals should be exemptedfrom the regulations altogether.

We ask pharmacists to give us feedback on these draft proposalsand in the meantime, we hope that the Guild has reflected uponits previous decisions on RP regulations and the subsequentdevelopments in this area.

Pages 22 and 23 of this magazine describes our furtherexasperation with the position of the Guild in relation toProfessional Indemnity Insurance. We describe how some hospitalpharmacists may have been confused with the current advice thatthey offer.

Despite these concerns, in the interests of hospital pharmacists, inrecent years the PDA has approached the Guild on more than oneoccasion with a view to the two organisations joining forces. So far,no progress has been made and it is such a great shame. With allof the conflicts facing hospital pharmacists today, we think that ifthe two organisations both seeking to protect the interests ofhospital pharmacists both with distinct strengths and uniquecapabilities are unable to combine their forces and point in thesame direction then it is in our view, to the detriment of allhospital pharmacists.

I urge hospital pharmacists to contemplate the benefits ofsuch an arrangement, to make their views known and if theyfeel it appropriate - to put the case for change.

ContentsNews p3-5

Decision time on RP and Supervision p6-8

An update on the NHS reforms p9

Can you rely on your employer to protect you? p10-11

The PDA at The Pharmacy Show p12-13

HMRC targets locum pharmacists p14-15

Recent Employment Tribunals p16-17

Protecting your income p18-19

Where to go in times of stress p21

PDA challenges Guild policy on PI insurance p22-23

Mark Koziol, Chairman, The PDA

Chairman’s letterTelling it as it is

www.the-pda.org insight summer 2011 |3

NewsThe PDA’s Road Map proposal is about tobe finalised and will soon be ready tosubmit to the government. A lot hashappened in the world of healthcarepolitics since March, with significantchanges made to the Health and SocialCare Bill, and our proposals have to be intune with these developments. We havealso fed in further members’ views thatwere expressed at the PDA conference.

The whatThe main thrust of the PDA proposals is thecreation of a new second pharmacist role.Our ‘clinic pharmacist’ would be based in thecommunity pharmacy and work in a muchmore integrated fashion with GP surgeries.The clinic pharmacist would practise as anindependent autonomous healthcareprofessional and provide continuity of care forpatients with long term conditions on aregistered patient basis.

Working alongside our clinic pharmacist, theexisting community pharmacist would alsosee a significant shift in focus, with a much

greater role in patient facing activity. Thesechanges will require a significantredistribution of healthcare responsibility, butwe believe that they will improve the patientjourney and create much more rewardingprofessional roles for pharmacists.

Furthermore, they will enable GPs to betterorientate themselves towards preventingunnecessary hospital admissions for patientswith acute conditions. Currently manypatients are unnecessarily presentingthemselves at A&E departments, feeding thehuge increases in emergency admissionswhich already cost the NHS more than £11billion per annum.

The howHow we achieve this is described in extensivedetail within the Road Map proposaldocument and a lot of professional andfinancial re-engineering would be required tosupport such a development. Importantly,the community pharmacy would still need tobe able to ensure that the public continue toreceive their medicines safely.

However, subject to these significant changes,we believe that:

• Community pharmacists should becomemuch more available at the re-designed‘front of shop’ to respond to patients’healthcare needs on a walk-in basis;

• Clinic pharmacists should provide clinicalservices to patients with long termconditions through clinics on a registeredand planned care basis;

• Community pharmacy premises should bebetter utilised to provide significantlymore ‘surgery’ capacity;

• Community pharmacies should be used toprovide better access to health and socialcare services, including voluntary andother services that provide social capital.

We will email all PDA members with afinalised copy of the Road Map documentas soon as it is completed.

Road Map arrival

A New Pharmacy Road Map

Re-engineering pharmacy practice

PDA is calling for urgent meetings withemployer organisations to address anumber of key issues surrounding theforthcoming implementation of the NewMedicines Service (NMS). It believes that,if NMS is to be a success, employers mustsupport pharmacists delivering theservice in a number of ways:

• Pharmacists must be allowed to deliverthe service with professional autonomy.

• Employers must provide the necessarysupport if they expect pharmacists toprovide such services to patients.Particular attention needs to be paid toproviding the correct environment andstaffing levels to enable the service to becarried out professionally and safely.

• Employers should not place unduepressure on pharmacists to deliver theseservices, this is even more critical insituations where this may impact uponthe provision of other pharmacy activities.

• Individual pharmacists should berecognized financially for delivering theservice.

Also;

• The NMS, should be developed through abottom up approach involvingpharmacists, patients and GPs and not viaa top down ‘fait accompli’.

The PDA wants these issues addressedbefore the NMS service is launched inOctober, in order to ensure that themistakes which hindered the MedicinesUse Review service are not repeated.

Mark Koziol, PDA Chairman, comments:“We think the NMS is potentially anexcellent service for the profession to beinvolved in and we would like it to work.But pharmacists must be able to deliverthis service with professional autonomy ifthe mistakes of the past around MURs areto be avoided. The right mechanism needsto be found to deliver NMS for patients,one which can benefit patients, employersand pharmacists. As well as ensuring thatpatients can receive a safe andprofessional service, if pharmacists arecarrying risks in delivering these services,then they must also share in the rewards –be they intrinsic or extrinsic. There is littletime left to consider these issues and toavoid the mistakes that were made withMURs”.

“Don’t make the MUR mistakes again”warns PDA

One of the major consequences of NHScuts and budget constraints areorganisational restructures, and the PDAUnion has dealt with a significant numberof queries from hospital pharmacists facingredundancy or demotion.

The changes take the general form ofmanagement positions being reduced orlevels taken out altogether. Some pharmacistsat Band 8b are being demoted to 8a roles.Similarly there is a reduction in band 8apositions so current role holders findthemselves having to reapply for their ownjob. Those that are unsuccessful in securingpositions have then faced demotion to Band7. This approach is known as ‘slotting in’.

The NHS will be doing everything in its powerto prevent redundancies because of theinherent cost. It is in the employer’s intereststherefore to manage the process so as tomaintain that all jobs on offer to those whoare being ‘slotted-in’ are suitable alternatives.

Orla Sheils PDA Legal Adviser explains:“Hospital pharmacists are facing a greatdeal of change in their workingenvironment at the moment, restructuresand cuts to payments for on-call provisionare unsettling for our membership. Whilstgenerally, employers are following theappropriate consultation processes anddealing with matters in an open manner, itdoesn’t alter the fact that those whoworked hard to climb their way up thecareer ladder find themselves at the bottomof it in the space of three months.”

Where PDA Union representatives have beenasked by members to attend a consultativemeeting on the changes it has done so.Members who attend group and 1-2-1consultations should treat them as listeningexercises, ask questions and scrutiniseconsultation documents.

“It is important that if members haveconcerns regarding the suitability of a

proposed role that they make these veryclear”. Ms Sheils continued “This can relateto the nature of the role itself, the salary,hours of work and location. A suitablealternative doesn’t have to be a 100%match however there needs to be very closeresemblance to your previous role.”

Members unhappy with the job they are beingoffered, should record their objection as soonas possible. The alternative being that themember will be ‘slotted in’ to a role that thepharmacist does not believe is acceptable yetthe NHS will argue is a ‘suitable alternative’with the objective of avoiding redundancypayments.

Individuals are advised to contact the PDAlegal team who will be able to counsel onhow to best approach meetings and legalremedies available to members if a disputeshould arise.

Hospital Pharmacists feel the pinch

PDA has defended a number ofpharmacists who have been subjected tosanctions by the GPhC as a result ofpatients complaining of sexual assault orinappropriate behaviour in theconsultation room.

With no more evidence than a singlestatement from a patient the regulator hason several occasions applied for an InterimOrder to have the pharmacist suspendedfrom practice. The Fitness to PracticeCommittee has the power to apply thissanction ostensibly removing any immediate

threat to the public whilst the matter is underinvestigation pending a full hearing.

In these cases and after representations fromthe PDA the Committee has applied commonsense and allowed the pharmacist tocontinue to practice albeit under certainconditions which often include a requirementfor the pharmacist to have a chaperone whendealing with a patient in a consultation room.

The PDA feels obliged to warn membersabout this trend and to advise them toconsider using a chaperone in any event in

certain situations. Mark Pitt, PDA MembershipServices Manager says, “In view of recentdevelopments we believe that chaperonepolicies should be reviewed to ensure thatthe pharmacist is properly protected andwhere no policy exists the employershould be encouraged to adopt one.”

“Female pharmacists are also vulnerable tosuch allegations” explained Mark, “And allpharmacists should consider using achaperone when dealing with vulnerableor unpredictable groups of patients.”

Pharmacists warned to beware in consultation rooms

PDA Union has written to theHuman Resources Director of NHSScotland requesting that PDA Unionis recognised as an organisation tobe formally consulted on matters of“workload and practicepertaining to pharmacypractice and individualpharmacistpractitioners”.

| insight summer 20114 www.the-pda.org

PDA Union approachesNHS Scotland

News

If you have pharmacy technicians working in your pharmacy under thetransitional arrangements they will not be able to call themselves suchunless they have been registered with the GPhC before 1st July 2011.

The transitional arrangements ended on Thursday 30 June 2011 and onthis date, registration for pharmacy technicians became mandatory andthe entry requirements changed. Those who had not applied to registerby that date now need to undertake further qualifications and workexperience before they can apply to register.

Pharmacists should be aware and check their technician’s registration. Inthe event that any non registered pharmacy technician practices illegally,then both RPs and the superintendent as the employer are likely to beheld accountable by the authorities.

Transitional arrangementsfor technicians close July 1st

www.the-pda.org insight summer 2011 |5

In September 2009, Superdrug imposedchanges to the employment contracts ofits pharmacists. In a development thatmay perhaps cause other pharmacyemployers and employees to re-thinktheir approach to changing contractualterms, a PDA Union member took theadvice posted on the PDA web site andthis led to a successful claim against theemployer and compensation of £5000.

When the issue of the imposed contractchanges were first brought to its attention,PDA advised that the new terms wereextremely one sided allowing the employerthe greatest flexibility it could possibly havewith regards to work patterns andenvironment without taking into accountpersonal circumstances. Furthermore; theirthreat to dismiss anyone who refused to signit was challengeable and depending on theindividual circumstances may constituteunfair dismissal and breach of contract.

The claimant in this case, a part timeemployee, maintained that the contract had

been presented to him as a ‘fait accompli’and that the communication with him didnot constitute a consultation. In his claim tothe Employment Tribunal the claimant stated

“I have been treated unfairly and I feel Ihave been constructively dismissed. I alsofeel that Superdrug have breached mycontract. Superdrug sought to impose newterms and conditions on me unilaterallywithout real meaningful consultation directwith me. I had three meetings, the themeof which was here is the new contract youeither sign or we will sack you. Superdrugrefused to allow me to sign my contractunder protest and to continue to workunder the new contract.”

Superdrug denied that they had notconsulted and claimed they had a goodbusiness case for implementing the changes.

The guidance that the PDA posted on theweb site at the time stated;

“Employees may be dismissed from theiremployment for fair reasons only.Dismissal for refusing to sign a contractwith new terms and conditions could beconsidered a fair reason by anEmployment Tribunal in certaincircumstances [but the employer mustconvince the tribunal that it has satisfiedcertain criteria in its decision to dismiss].

What needs to be considered is thebalance between an employer's need tochange the existing terms against theemployee's need to keep things as theyare. The Courts have in the past

appreciated that some employers havehad no choice but to make changes inorder to keep the business afloat and havefound that employees refusing to acceptchanges have been unreasonable in doingso. The PDA believes that too manychanges have been put forward bySuperdrug and we are currently not awareof what the business reason for makingthese changes is. Whilst we cannotguarantee success [in making a claim to anET for unfair dismissal] we are reasonablyconfident that employees with at least oneyears’ continuous service who cannotcomply with the changes for good reasonsand particularly those who cannot due tohaving caring responsibilities or onreligious grounds would succeed inbringing unfair dismissal claims in anEmployment Tribunal.”

Although we advised a significant number ofmembers on their rights going forward,almost all caved into pressure to accept thenew contract and to our knowledge thisemployee was the only one prepared to takematters to an Employment Tribunal.

John Murphy said, “we know thatcompanies exert great pressure onemployees to accept changes they want toforce through and it can be a dauntingexperience to stand up to this; howeverthis judgement shows that even thebiggest employers can get it wrong andthere are effective routes for resolvingsuch disputes – all it takes is for employeesto stand up for their rights.”

£5,000 award paid as PDA tells members to stand upfor their rights

The primary source of regular news andupdates sent to PDA members is done soby email, however, some members mayhave these emails filtered out by defaultsettings on their spam filters.

PDA has now produced web siteguidance on how its members can

ensure thatthey accesstheir emailsfrom PDAwithout beingfiltered off asSPAM or junkmail.

“With 96% ofour members

having email accounts, we are increasinglyusing electronic mail to communicate withthem.” Said Harminder Lall the PDA Unioncommunication officer.

“Well over 80% of our members use ouron-line facility for joining or renewing sothey have no problem with

communicating with us using thismedium”, said Harminder, “So we wouldn’twant them to miss out on very importantinformation when we communicate withthem in this manner.”

Members are therefore advised that if theydo not receive PDA emails or only receivethem sporadically then go towww.the-pda.org/spam. Guidance isavailable on this site whether you accessyour email through a web browser (such asGoogle, Yahoo and Hotmail) or if you use acomputer programme to read your emails(such as Microsoft Outlook, Windows orApple) so you can disable any filter or anyother mechanism that restricts your accessto PDA emails.

You’ve got mail

www.the-pda.org| insight summer 20116

Exempt hospitals from RPregulationsHospital pharmacies should be exemptedfrom the regulations altogether as theydeliver no benefits to hospital patients andcause significant problems for the service.Some hospitals are so slavishly followingthe regulations that they have had to closedown satellite dispensaries. Meanwhile,others are simply paying them lip serviceand an (often non pharmacist) ‘RP monitor’is simply filling in the RP register on a Fridayafternoon with a list of names ofpharmacists that happen to work in thathospital.

In hospital practice the pharmacist left totake charge of the dispensary as the RP isoften the person least likely to be able totake statutory responsibility for all aspectsof the medicines dispensed. Thepharmacist who has undertaken the clinicalcheck on a prescription and takenprofessional charge of the pharmaceuticalcare relationship with the patient is usuallymore senior to the RP and will often befound on the ward. As a result of theregulations, this is not the pharmacist whotakes statutory responsibility.

A modern, patient facing,definition of supervisionUnder the old 1968 Medicines Act apharmacist had to be in personal controlfor a pharmacy to operate lawfully, which inpractice meant that the pharmacist had tobe present. But amendments to the Act,which went live in 2009, allow a pharmacyto operate lawfully in the absence of apharmacist, as long as an RP is signed on.The absence is currently restricted to twohours, but the forthcoming consultation on

remote supervision will seek to define amuch longer absence period.

The PDA has many objections to this plan,but they are mainly based on the notionthat the community pharmacy is uniquelythe place where the public can expect tofind a fully qualified healthcare professionalto answer their healthcare related queriesand supervise their medicines purchases.No matter how many arguments are putforward about trained counter staff andregistered technicians, one fundamentalfact still remains: a pharmacy is a saferplace when a pharmacist is present.

Most importantly of all, the presence of thepharmacist to be able to look after patientsboth reactively (when they are called toassist) AND proactively (when they spot aproblem emerging in the pharmacy thatthe non-qualified staff may not) is wherethe real benefit of the pharmacist’spresence lies. We believe that thedefinition of supervision going forwardshould be: Supervision is when thepharmacist is in a position to interveneboth proactively and reactively inpatient facing situations with regards totheir medicines and pharmaceuticalcare.

Under thispatient centreddefinition, thecommunitypharmacistwould be foundin the pharmacy,whilst thehospitalpharmacist maybe found in arange oflocations, butmainly in patientfacing situationson the wards. In

light of this, we would recommend that aseparate professional Code of Practice isdeveloped for community and hospitalpractice.

Should there be an absence?Experience has shown that the existing twohour absence provision is simply beingused to reduce certain employers’operational costs, rather than using remotesupervision to develop new roles. If alonger period of absence were permitted

many pharmacies may be operating formuch longer periods of time without apharmacist. This would not be good forpatients, for pharmacy, nor for healthcaregenerally.

There will always be occasions when, forgenuine reasons, the pharmacist needs tobe temporarily absent, and the regulationsmust provide for this. But the pharmacy willnot be as safe during this absence period,so it should only be considered in situationswhere benefits outweigh the risks. Theseinclude the following:

• A critical incident requires thepharmacist to go to a patient’s hometo collect wrongly dispensedmedication;

• The pharmacist takes a rest break,where the risk of working without abreak introduces more risk than if anabsence is taken.

Furthermore, the absence decision mustonly be made by the RP, and never simplybe ‘institutionalised’ as is currently thecase, usually via a Head Office memo. Thereason for the absence should always berecorded. And crucially, the public deserveto know if there is no pharmacist present,so there must be clear signage to indicatethis.

How long should be allowed?Absence provision must be broad enoughto allow rest breaks and the resolution ofpotential critical incidents away from thepharmacy. The current two hoursmaximum could be enough to deliver boththe rest break and emergency contingency.However, we believe that the professionshould have a debate about the duration ofabsence, concluding with a ballot to ensurethat pharmacists, and not the governmentor employers, choose the most appropriatesolution.

We are not attracted to the argument thateach RP can decide on the duration ofabsence, because without any cap theresulting free for all would damage theuniversal notion that the public can expectto find a pharmacist in the communitypharmacy. Therefore we advocate arelatively short, capped maximum period.

The entire supervision debate has hugelyundervalued the important safetycontribution of pharmacists’ involvement inprescription dispensing.

www.the-pda.org insight summer 2011 |7

Chairman Mark Koziol sets out the PDA’s position on RP and remote supervision ahead of the forthcoming review of the RP regulations and final consultation on remote supervision

The Department of Health’s finalconsultation on remote supervision isscheduled for this autumn, so we haveone last opportunity to deal with thethreat of remote supervision. There isno doubt that the supervisionarrangements in pharmacy needupdating, but the PDA argues that theideas put forward by the Departmentof Health demonstrate a startling lackof insight into the realities ofpharmacy practice.

Experiences of the RP regulations inpractice demonstrate that they have beenruthlessly exploited by some largeemployers to exclude pharmacists fromcertain pharmacy operations and reducetheir operational costs. In the hospitalsector in particular, they have proved to bea classic example of activity simply for thesake of process. They have createdunnecessary bureaucracy and even led tothe closure of satellite pharmacies.

The regulations have not only introducednew criminal sanctions for pharmacists, buthave increased the risk of individual liabilityfrom professional and criminal sanctionsagainst RPs for matters largely outside oftheir control. Fortunately, after somesignificant lobbying from the PDA thePharmacy Minister has agreed that he willnow review the RP regulations.

The PDA has spent considerable time withmembers and has been working closelywith other pharmacy bodies to establishsome workable policy on how RPregulations and supervision should beupdated. Prior to the Department of Healthreview of the RP regulations and the formalconsultation on remote supervision, wepublish here the draft principles that haveemerged.

Clarifying the responsibilities ofthe superintendent and the RPThe RP regulations currently make the RPstatutorily responsible for securing the safeand effective running of the pharmacy. Webelieve that responsibility is simply toowide, and we have handled defence casesthat highlight this problem.

In one case, the police have taken actionagainst a locum under the CD safe storageregulations because he happened to signon as an RP where the owner had screwedthe CD cupboard onto a plaster board wall

instead of a brickwall. The policecited the RPstatute, whichstates that the RP,and not the owner,is responsible.Employers havealso cited the RPregulations whendisciplining anemployeepharmacistbecause,unbeknown to him,staff were stealingfrom the business.And certaininsurers have usedthe regulations totry and hold RPswholly liable fordispensing errorsthat werecommitted bysomeone else on aprevious day, butthat were handed out while a new RP wason duty.

In reality, the RP regulations thus far havegiven the RP all of the liability, but none ofthe control. This must be changed. Ourproposal is that we make the RPresponsible for what the RP can realisticallybe held responsible for, which is thepharmaceutical care of the patient. Wewant the responsibility of thesuperintendent re-introduced for all othermatters that realistically only they cancontrol, such as the physical environmentof the pharmacy.

Giving the RP more controlAlthough the RP regulations may have beenintended to empower pharmacistsprofessionally, large employers havecontinued to exercise full control over RPsworking in their pharmacies. Some havetold RPs to turn up for work at 9am, butsign on from 7am, thereby takingresponsibility for events in the pharmacybefore they arrive. They have then had thetemerity to suggest that this did notactually constitute work and that no paywould be forthcoming. We believe that thelaw should be strengthened and that newpharmacy regulations and professionalcodes of practice be created to outlaw

some of the current business behavioursthat undermine the authority of the RP.

Make the RP an advancedpractitionerOriginal proposals recommended that RPsshould have undertaken an additionalassessment. This would have created thebeginnings of a structured, professionallybased career framework, with thecorresponding reward structures. Butpowerful commercial arguments were setagainst such a proposal, because of costimplications, and it was blocked. This was afundamental mistake.

A quality and structured professional careerframework already exists in hospitalpharmacy, but is long overdue in thecommunity. The regulations need to revisitthis point and, if necessary, allow all currentRPs to retain their current position as RPthrough a grandfather clause. Furthermore,the structured career framework approachwould open the door for pharmacists togain even more recognition throughreaching the higher levels of the frameworksuch as a specialist practitioner andultimately a consultant. This would providea solid foundation upon which furtherclinical roles for pharmacists could develop.

Decision time on RP and supervision

continued...

8| insight summer 2011 www.the-pda.org www.the-pda.org insight summer 2011 |9

Pharmacy is embroiled in some of the mostdramatic reforms of the 63 year history of the NHS.England’s 152 Primary Care Trusts will cease toexist in April 2013 and will be replaced by around500 clinical commissioning groups that will beresponsible for commissioning the majority of NHSservices.

The Government’s original proposals for the NHS, asoutlined in the health white paper ‘Equity and Excellence:Liberating the NHS’, published last July, attractedwidespread criticism, particularly from doctors. InNovember Dr Clare Gerada, Chairman of the Royal Collegeof General Practitioners, called the plans ‘the end of the NHS aswe know it’.

As a result, a “natural pause” in the progress of the Health andSocial Care Bill was announced in April and the NHS FutureForum was formed to conduct a listening exercise. PharmacistAsh Soni was the sole pharmacy representative on the Forum. InJune, the Government accepted all the Future Forum’s proposalsand the changes have now been laid before parliament.

A U-turn, or simply a re-think?One of the most controversial proposals in the White Paper wasthat consortia of GPs would be solely responsible forcommissioning around £80 billion of NHS services. They couldcommission services from ‘any qualified provider’ andcompetition in the NHS would be promoted by a newly formedbody called Monitor. These proposals were designed to increasecompetition in the NHS, but it was generally perceived that thiswould give GPs too much power and responsibility that theywere not best equipped to manage alone. It could also leavepharmacy enhanced services out on a limb if GPs chose tocommission themselves to deliver services that traditionally fallunder pharmacists’ remit.

As a result of the Future Forum’s recommendations thefollowing key alterations have been made to the originalproposals:

• GP consortia will be renamed ‘clinical commissioninggroups’ to reflect the fact that they will now include awider range of health professionals.

• Every clinical commissioning group will have a governingbody including at least two lay members, one hospitaldoctor and one nurse. The rest of its clinical membershipis being left open.

• Clinical senates – made up of doctors, nurses and otherprofessionals, including those from social care – will beset up to offer expert advice to commissioning groups.

• The delivery of services by ‘any qualified provider’ willinitially be restricted to ‘selected community services’.There will never be blanket coverage and some servicessuch as A&E and critical care are unlikely to ever fallunder this remit.

• Monitor to focus on protecting and promoting patients’interests, not promoting competition as an end in itself.

Good news for pharmacyThe amendments have been welcomed by pharmacy bodies asgood news for the profession, particularly the opening up of themembership of clinical commissioning groups to include otherhealthcare professionals, and the emphasis on transparency androbust governance. Pharmacists will not have a seat on thesebodies as of right, but will be able to earn a place based on theirindividual merits. Prime Minister David Cameron has reportedlysaid that pharmacists are expected to play a key role in the newcommissioning groups

July’s NHS white paper was the first to directly mentionpharmacy, stressing that the pharmacy contract will place anincreasing emphasis on medicines management. It specificallymentioned a ‘First Prescription’ service’, which has become theNew Medicines Service to be launched in October.

A new National Commissioning Board will be responsible for thenational pharmacy contract. Pharmacy enhanced services are tobe commissioned by clinical commissioning groups, exceptthose of a public health nature, which will become theresponsibility of local council authorities. Local communities willbe required to create Local Health and Wellbeing Boards to workwith NHS commissioners in shaping strategies for local healthimprovement, social care and NHS service provision. Funds forpublic health services will be ring fenced and held by a newnational public health department, Public Health England.

NHS reforms - an updateWhere does the government U-turn on its NHS reforms leave pharmacy?

A recent Medical Defence Union (MDDUS)presentation described how GPs’ liabilityclaims had fallen significantly as a directresult of input from prescribing supportpharmacists. Research has shown that thereare currently around four errors per 10,000items dispensed. We argue that, while thereis obviously still room for improvement, thiserror rate is small largely due to theinvolvement of the pharmacist. If there wasno pharmacist, we would see this figureincrease.

The PDA’s position is that a pharmacist mustbe involved in the clinical check ofprescriptions. Secondly, Pharmacy onlymedicines can only be sold in a pharmacywhen a pharmacist is available to supervisetheir supply and intervene when required.The MHRA tells us that the existence of the Pcategory and the idea that a pharmacist isalways present enables an easier transfer ofPOM to P medicines. If this were to bechanged, there are likely to be fewer POM toP switches, harming plans for patients to takegreater responsibility for their health.

Skill mix and the use oftechnologyModernised supervision rules should not takethe pharmacist away from the publicinterface through remote supervision, theyshould aim to support greater face to facecontact with the public. For this to occur,however, pharmacists must be able to spendless time in the dispensary. This can onlyoccur if the following conditions are met:

• Registered pharmacy technicians areworking in the dispensary;

• Technology is better utilised toimprove dispensing accuracy;

• Clarity needs to be provided to ensurethat if a pharmacist has undertaken aclinical check and then handed theprescription to a registered technicianfor dispensing, that it is the registeredtechnician that is held professionallyliable in the event that their pickingerror leads to the harm of the patientand not the pharmacist;

• Dispensing errors must bede-criminalised.

Remove the criminalityAgainst a backcloth of the Elizabeth Leecase, the government introduced newcriminal offences under the RP regulations.This is abhorrent to the profession,completely lacks proportionality, andultimately damages the public interestbecause it drives pharmacists into defensivepractice. We urge the government toremove the criminal sanctions from the RPregulations.

continued from previous page

PDA policy on RP and remote supervision

Clarify the responsibilities of the superintendent and the RP:• Limit the responsibility of the RP to matters relating to thepharmaceutical care of the patient

• Make the superintendent responsible for matters relating to thebusiness and the pharmacy premises

Ensure that the RP can operate with the necessary level ofcontrol:• Embellish the professional autonomy in the 1968 Medicines Act – aspart of the current review of the Medicines Act

• Create clear and unambiguous regulatory standards that outlaw thesuppression of RPs’ professional autonomy by owners orsuperintendents – a job for the GPhC

• Create a professional code of practice framework that preventssuperintendents or owners riding roughshod over the legal authorityof the RP – a job for the RPS

Create a structured career framework in communitypharmacy and link RP status to a more advanced level ofpractice:• Practitioner

• Advanced practitioner (linked to RP qualification)

• Specialist practitioner

• Consultant

Exempt hospitals from the RP regulations

Produce a modern, patient facing definition of supervision

Define what can be done during an absence:• A pharmacist must be involved in the clinical check of prescriptions

• P medicines can only be sold or supplied if a pharmacist is presentin the pharmacy

Use skill mix and technology to the advantage ofpharmacists and patients

Remove the criminality

This article describes the main thrust of the PDA’s policy on RPand supervision. A more detailed policy document is due forpublication in August, ahead of the government’s final remotesupervision consultation.

If you wish to comment on these interim proposals, please doso by going to

www.the–pda.org/comments

HAVE YOUR SAY

www.the-pda.org insight summer 2011 |11www.the-pda.org| insight summer 201110

“I was told that I didn’t need to join thePDA because my employer will insureme if anything goes wrong” issomething that we hear a lot at thePDA, usually AFTER something hasalready gone wrong. This articleexplores the practical reasons as to whypharmacists should carry their ownprotection, independent of theiremployer and independent of anyorganisation that looks after theiremployer’s interests.

The PDA is a defence association and atrades union and amongst other things,puts in place an insurance contract toensure that funding is available for complexand costly cases. These may include criminalproceedings such as the Elizabeth Lee case,regulatory or employment disputes, and ofcourse it enables the payment ofcompensation to injured parties as a resultof a negligent act of a member. Sometimes,the costs for individual cases can run into sixfigures.

Full PDA membership provides personalprofessional indemnity cover for pharmacistswhether they are an employee or selfemployed irrespective of what branch ofpharmacy they practice in.

Vicarious liabilityEmployees are told that they haveprotection from their employer in the formof ‘vicarious liability’, this is a semi-strictliability imposed on an employer in respectof negligent acts committed by anemployee whilst in the course of theiremployment. It is a legal obligation and onewhich they cannot escape, though they cansubsequently reclaim their financialexposure from their employees if they sowish.

So if an employer is vicariously liable, thenwhy is it advisable to carry personalinsurance?

Exposure to claimsIn strict law, the employer’s liability isadditional to and not in substitution for theemployee’s liability for his or her ownactions - the employee remains personallyliable to the victim. There is always a termfound in contracts of employment that anemployee will exercise all reasonable careand skill during the course of employment.An employee who is negligent is in breachof such a term and the employer who hasbeen held vicariously liable for the harmcaused may seek to recover any losses

suffered by them – such as paying outcompensation to a patient harmed by theactions of the employee pharmacist.

Although instances of employers taking suchaction against its employees are notcommon, case law shows that employershave won compensation claims against theiremployees because they successfully arguedthat the employee had engaged in ‘wilfulmisconduct’. In pharmacy, pharmacists areincreasingly being disciplined and evendismissed, for failing to follow SOPs. In onerecent case the employer acknowledgedthat the pharmacist deviated from the usualSOP in the interests of the patient but stilldismissed her. Once employers take this lineof approach, it is easy to see how they maylabel dispensing errors as ‘gross misconduct’(a dismissible act) or they may deem themto be ‘wilful misconduct’. What hasoccurred in pharmacy is that someemployers have pursued their employees forthe legal costs incurred in a disputeinvolving their employee.

The reason why it is important forpharmacists to carry their own indemnityinsurance however, is not because it willhelp to determine who should or should notpay for any negligence claim, the real nub ofthis issue is that he who controls the claimcontrols the defence strategy and will beable to determine exactly whose interestswill be of primary importance.

Being in control of your owndefenceThere have been three recent high profilecases that demonstrate why pharmacistsshould remain in control of their owndefence.

The ‘peppermint’ water case where apharmacist and pre-reg faced charges foroffences under the Medicines Act for adispensing error.

The ‘Prestatyn’ case; where a pharmacistfaced charges for offences under theMedicine’s Act for a dispensing error.

And then there was the Elizabeth Leecase where she faced charges foroffences under the Medicines Act for adispensing error.

In the first two cases the pharmacists hadtheir defence managed and paid for by theiremployer and in the latter the pharmacistwas a member of the PDA.

In the first two cases the employees wereprosecuted.

In the Elizabeth Lee case, she was initiallyprosecuted, she then went to the RoyalCourt of Appeal; successfully had one of theoriginal decisions overturned, her custodialsentence quashed and secured a landmarkprecedent judgement that means that anindividual employee or locum pharmacistnever be charged under section 85.5 in thefuture, as the Court of Appeal determinedthat a breach of this section of theMedicines Act could ONLY EVER be made byan owner of a pharmacy.

We feel that it would be highly unlikely thathad she relied on her employers defenceefforts, that they would ever had taken theline of defence that was taken by the PDA,which resulted in a striking out of theoriginal prosecution and a landmark rulingthat was very hostile for anyone who is anemployer.

Serious incidents –competing interestsSome incidents that can lead to patientsbeing caused significant harm or even deathcan lead to police and regulatoryinvestigations, employer disciplinary actionand finally compensation to the victim ortheir families. The more serious the incidentthe more the pharmacist, the technician orpre-registration graduate and the employerare exposed. The danger to the individualpharmacist in allowing the employer tocontrol their defence strategy is that theemployer may want to extract itself fromthe firing line to protect its brand. Anemployer’s defence strategy will rarely beprimarily constructed to look after theinterests of the employee or locum.

The medical, dental and nursing professionsare renowned for ensuring that they havetheir own protection – indeed when thePDA represents its members in coroners’inquests employed doctors and nurses rarelyrely on their Trust’s legal team to defendthem; their own defence association securesgood lawyers and a robust defence positionon their behalf. In contrast, somepharmacists do not turn up to theseinquests with representation that isindependent of their employer and oftenfeel that they have lost out.

In a recent communication the dentaldefence association issued a statement toits members; "Under vicarious liability,employers remain theoretically liable forthe acts or omissions of their employeesbut the General Dental Council stillrequires all registered dentalprofessionals to demonstrate they areproperly indemnified and patients areable to claim any compensation they maybe entitled to. We do not think DentalCare Practitioners should rely on vicariousliability alone. Without membership of adental defence organisation and thebenefits of independent dento-legal

advice it brings, it is possible that dentistsmay not be fully discharging their dutiesunder General Dental Council guidanceand they may be professionally andpersonally vulnerable.”

Who is holding theumbrella?At the PDA we liken it to holding anumbrella. If you are in a storm and you aredependent on another person carrying anumbrella to keep you dry, with the best willin the world and however attentive theother may be, at some stage or other, youwill get wet. There may be a change in thedirection of the wind, or you may come to alamp post in the street and the only way toget around it is if you both go different waysbefore you meet at the other side; theperson who holds the umbrella stays dry allthe time. It’s a bit like that with your owndefence. No matter how much you trust theother interested parties, it is inevitable thatat some stage in the proceedings yourinterests will not be taken care of.

PDA recognises that there will be thoseoccasions where for whatever reason apharmacist may wish its employer to handle

their defence in a specific incident.However, many of these matters are highlynuanced and often, knowing when onesinterests are beginning to lose out requiresan expert independent view. Pharmacistdefence really does need to be independentof the employer and of any organisationwhose role is to look after the interests ofthe employer.

Up close and personal with the PDA

When you walk through a storm – do not rely on someone else’s umbrella!

On my first day John Murphy, PDA director,asked why I hadn’t joined the PDA. I repliedwithout a second thought that my employer’s

insurance would cover me. ‘Well,’ said Mr Murphy, ‘for thenext few days you shall see why it is important forpharmacists to join the PDA, and you will soon findout that the PDA is more than just an organisationthat provides insurance cover.’

The PDA is a non-profit-making defence organisation and Iused to think that it would only benefit locums, but wasamazed by the number of ongoing cases that involvedisputes between employers and employees, for issuessuch as unfair dismissal, discrimination and unfair contractterms. Put simply, if there is a conflict between youremployer’s interest and your professional reputation, such asa fitness to practice matter, do you think your employerwould go all the way to help solve the problem in thepharmacists interest?

This is exactly why individual pharmacists need anorganisation like the PDA. It defends pharmacists when theyare faced with a conflict, and it proactively lobbies for theindividual pharmacist’s agenda.

I have seen how far the PDA will go to protect its members.Its union status means that it can represent pharmacists in

internal grievance and disciplinary meetings, and it has legalrights of consultation with employers. Its legal experts andexperienced pharmacists provide advice to help pharmacistsin employment, fitness to practice and professionalindemnity claims.

And the PDA does far more than simply provide insurancecover. Its advice centre provides expert opinion and answersto many questions about pharmacy practice, and legalassistants also provide a free service for locum paymentclaims, where payments have been delayed.

As a pharmacist with a law background, I was surprised tosee how vulnerable our legal position is. The world ofpharmacy is changing; pharmacists are not predominantlypharmacy owners, but employees of large chains or theNHS. By joining the PDA we can make our voices heard, notmerely as a group of employees or self-employed people,but as a group of healthcare professionals with special skills.

As a result of my work experience I have decided tojoin the PDA. And I would urge those who are proudof being pharmacists and would like the professionalto remain a dignified one, but have not yet joined thePDA, to become a member as soon aspossible.

“

”

Conor Sin describes how his work experience in the offices of PDA convinced him to become a member:

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Q: So what can delegatesexpect this October – arethere any newdevelopments?A: Several. For starters, we’veintroduced a sixth conference - theClinical Forum - focusing on majordisease areas. As pharmacists arespending more time with patientsdiscussing their medicines, whetherit’s part of the new medicines service,doing MURs or running services,pharmacists have told us they wantmore clinical education. Theexhibition will be the biggest we’veever seen, with more than 50 newsuppliers exhibiting for the first time.Our special events programme hasexpanded enormously with most ofthe key industry organisations and

membership bodies running theirown education and networkingevents. We’ve also formed somenew partnerships with pharmacygroups in Scotland, Wales andNorthern Ireland who will run someof their own events for theirmembers – we want to make thisinto a truly national event.

Q: Is the show only relevantto pharmacists – whatabout other members ofthe pharmacy team?A: The show is relevant totechnicians and staff who work inthe dispensary or behind thecounter. We have products andservices on the show floor that arerelevant to them, and specific

training and workshops tohelp them in their jobs.Pharmacists send theircounter assistants to thehugely popular OTCAcademy, for example,which gives them producttraining, and our PharmacyBusiness Accelerator ishugely popular withpharmacy managers andowners.

The Pharmacy Show (October 9-10th,NEC, Birmingham) is the highlight ofthe professional calendar and the PDAhas a major presence again this year.

The two day sourcing, training andeducation event has grown and beentransformed dramatically in the last twoyears. The Pharmacy Show is now theUK’s largest pharmacy conference andthe largest provider of live CPD educationfor pharmacy professionals featuring sixmajor conferences, numerous industryevents and a major exhibition featuringmore than 250 UK and internationalspecialist suppliers.

In this interview with the PharmacyShow’s new event director, MatthewButler, the organisers set out the agendafor this year’s Pharmacy Show andexplains why pharmacy professionals andPDA members will want to attend.

Q: The Pharmacy Show haschanged significantly from acouple of years ago – what hasdriven the changes?MB: Pharmacists and their colleagues havenever been under more pressure andchange which is coming at them from allsides – from patients, GPs, PCTs, red tapeand regulation, their contract, supplyproblems, Category M, the list is endless. Itwas clear that pharmacy was facing lots ofchallenges which it needed to face headon.

The Pharmacy Show has always been agood day out, especially for independent

community pharmacists, who come tosource products at the exhibition and catchup with friends and professional colleagues.That’s not changed. But we believepharmacists need more, much more, thanthe opportunity to pick up a few good dealson products.

So we have created the mostcomprehensive conference programmeavailable in the UK to help pharmacyowners, managers, employee pharmacistsand their colleagues confront some of thebiggest the challenges the profession hasfaced in decades.

Q: How have the changes to theshow with the expansion of theeducation programme beenreceived by pharmacists?MB: Attendance has grown close to 100 percent in the last two years, which is obviouslyan encouraging sign that pharmacists andtheir colleagues like what the show now hasto offer. Delegates have told us they like thestructure of the conference, with several

streams to choose from and the mix ofbusiness and clinical education as well aspersonal development training on offer.We’ve got good support from the trade,which allows us to offer the entireconference for free – which I think isappreciated by pharmacists.

Q: Can pharmacists use theshow to help them with theirCPD?MB: Yes. We provide CPD assessmentsbefore the show for almost all the morethan 55 lectures, to help delegates planwhat they need to attend and to map it totheir CPD requirements. We also provideCPD record aids immediately after theshow, which they can tailor and upload totheir CPD file with the GPhC. The ability toturn attendance at the show into CPDrecords has been very well received bypharmacists, and I am sure it will be a greatsupport to technicians now they also havean annual requirement with the GPhC.

The PDA at the Pharmacy Show – a conference not to be missed

Visit PDA at the exhibition. Register to attend for FREE at:

www.thepharmacyshow.co.uk

BPSA Pre-registration Graduateconference at the Pharmacy Show.BPSA Pre-registration Graduateconference at the Pharmacy Show.

This year’s Pharmacy Show Conference and Exhibition promises to be bigger and better than ever, with something for everyone

Pharmacy Show Conference• C+D Keynote Theatre - Expect leading figures from major multiples toshare their strategies for the future, while key policy makers will tell youwhat lies ahead for community pharmacy.

• The Clinical Forum - The Pharmacy Show has partnered with the BritishJournal of Clinical Pharmacy to deliver a world-class clinical programmecovering oncology, cardiology, respiratory medicine, renal, mental andsexual health disease areas. There will also be unique sessions, including:VTE prevention, independent prescribing, NICE quality standards andimproving medicines adherence.

• The Patient Services Forum - Aimed at pharmacy owners andmanagement, this forum will focus on the new medicines service (NMS),MURs and other new commissioned and private services in communitypharmacy.

• Skills & Development Forum - A series of training seminars from specialisteducation providers and trainers on key community pharmacy functionareas, focused on broadening the skill sets of pharmacy professionals.

• The OTC Academy - Training modules for counter assistants andtechnicians looking to improve their knowledge in different therapy areasand to help them offer patients better advice on OTC medicines and retailproducts.

• The Pharmacy Business Accelerator - These compelling sessions coverthe key challenges faced by pharmacies seeking to improve their businessperformance and increase profitability in these challenging times.

Matthew Butler, Event Director

Don’t forget: The Exhibition• Dispensing equipment

• OTC products

• Pharmaceuticals and prescription medicines

• Pharmacy equipment

• Technology solutions

• Medicines management solutions

• Unlicensed medicines and specials suppliers

• Wholesalers and distributors

• Retail solutions

• Professional services

Last year’s successful conference

The annual BPSA conference “Aiming High” willtake place at the Pharmacy Show again this year.The event is specifically designed to get new pre-registration graduates off to a flying start in theirtraining year.

John Murphy the director of PDA which designs,sponsors and administers the conferenceexplained “This conference is really well thoughtof by all the delegates year on year; it gives themideas and tips on how to effectively collectevidence for their on-going assessment, andhelps develop some of the soft interpersonalskills that the graduates will need to acquire ifthey are to make the year as productive aspossible.”

Ryan Hamilton the BPSA President agreed “This isthe third year we have held the conference at thePharmacy Show. This unique arrangement givesanother perspective to the event as delegatesnot only have a terrific learning experience butthey have this amazing opportunity to visit theexhibition as part of the deal!”

The conference which takes place on Sunday 16thOctober is one of a series of two, the other takingplace in February, and is often over-subscribed sopre-registration graduates would be advised tobook as early as possible on www.the-pda.org

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Locum pharmacists have becomethe unwitting victims of HMRevenue and Customs (HMRC)compliance activity into the widermedical profession. Over the pastfew years, HMRC has pursuedhospital consultants remorselessly,and it looks like locum pharmacistsmight be next.

Additional tax has been sought fromconsultants, based on undeclared incomefrom medical company commissions,medico legal work, professional writing andspeaking, as well as expert witnessappearances. Tax inspectors have alsoforensically analysed expenditure claimedand particularly sought to disallow, orseverely reduce, any claims with a dualpurpose, such as mobile telephones usedfor both business and private calls, or travelcosts starting from the home. This hasbeen the most contentious topic of all andthe expense locum pharmacists need to bemost concerned about.

HMRC has sought to define the differencesbetween various categories of selfemployed individuals, with regard to whatconstitutes the ‘business base’ for mileageand travel purposes. It is using historical taxcases to support its position. The two maintax cases referred to are Horton v Youngand Newsom v Robertson.

Home or a place ofbusiness?Mr Horton was a bricklayer from Eastbournewho entered into contracts with acontractor for bricklaying on various siteswithin 55 miles from his home. There wereno office facilities on the sites that hecontracted for, so he wrote up his booksand kept his tools at home. He claimedexpenses for travelling between his homeand the various building sites. He travelledto the various sites in his car. The Court ofAppeal decided that Mr Horton was entitledto the expenditure claimed because hishome was the base from which he carriedon his business.

In his summing up, Brightman J said:

‘In the majority of cases a self employedperson has what can properly bedescribed as his place of business orbase of operations. There are, however,some occupations in which the self

employed person does not have anylocation which can readily be describedas his place of business, but rather anumber of places at which from time totime he exercises his trade or profession.It seems to me that there is afundamental difference between a selfemployed person who travels from hishome to his shop or office or hischambers or his consulting rooms inorder to earn profits in the exercise of histrade or profession and a self employedperson who travels from his home to anumber of different locations for thepurely temporary purpose at each suchplace of there completing a job of work,at the conclusion of which he attends at

a different location. I do not think itmatters in the latter type of casewhether the taxpayer does or does noteffectively carry on any trade orprofessional activities in his own home.The point is that his trade or profession isby its very nature itinerant.’

Mr Newsom was a barrister who carried onhis profession partly in his Londonchambers when the courts were sitting andpartly at his home in Whipsnade. When thecourts were sitting he did a greater part ofhis work at his chambers, but at other timeshe worked at home except for anoccasional journey to his chambers. Heclaimed expenses for travelling between hishome and his chambers. The Court ofAppeal decided that not all of the travellingexpenses were incurred wholly andexclusively for the purposes of theprofession.

In his concluding comments,Denning L J said:

‘Once he gets to his chambers the costof travelling to the various courts isincurred wholly and exclusively for thepurposes of his profession. But it isdifferent with the cost of travelling fromhis home to his chambers and back. Thatis incurred because he lives at a distancefrom his base. It is incurred for thepurposes of his living there and not forthe purposes of his profession, or at anyrate not wholly or exclusively.’

How does this affect me?HMRC tends to class locum pharmacists inthe same category as Mr Newsom. HMRCdoes not regard locum pharmacists asitinerant traders. HMRC regards locum

pharmacists asprofessionalsexercising theirexpertise at a fixedbase, that is, apharmacy.

Therefore, if you area locum pharmacistwho claims travelexpenses from thetime you leavehome, whether youare paying for a trainfare or buying petrol,HMRC may wellchallenge the travelexpenditure claimed

on your tax return, on the grounds that thecosts incurred were not wholly andexclusively in the pursuit of your profession,but merely to take you away or return youto your home.

However, just because HMRC thinks acertain way does not mean it is right. Acommon charge laid at the door of HMRC isthat it does not examine Tax Returns on acase by case basis, with regard to theunique circumstances of that individual.Too often it makes assumptions withoutconsideration of the full facts.

For example, if you are a locum pharmacistwho works at different pharmacies, in anirregular pattern from week to week, youare more likely to win the argument thatyour travelling expenses are allowable. Ifyou are a locum pharmacist who works atthe same pharmacies consistently fromweek to week, you are more likely to haveyour travelling costs challenged by HMRC.

Generally, all one off journeys toattend training workshops orprofessional conferences areallowable, as are visits to deliverprescriptions to elderly or disabledcustomers in their homes, becausethe trips are regarded as non habitualand irregular.

SummaryHMRC has been targeted by thegovernment to bring in an extra£7 billion a year in additional taxand inspectors are moreaggressive than they used to be.

While not accepting the premise ofHMRC’s challenge to their travelexpenses, many hospital consultantshave struck deals with HMRC to avoidprotracted enquiries and unwantedpublicity at tax tribunal hearings.

This has only served to galvanise HMRCeven further, to enforce the principlesof Newsom, rather than Horton acrossthe professions. Locum pharmacistsneed to be aware of the need to keepaccurate and detailed records, so thata robust defence can be launched inthe event of an enquiry from HMRC.

HMRC targets locum pharmacistsAs the Inland Revenue looks to close tax loopholes, locum pharmacists need to stay ahead of the game.Guy Smith, SeniorTax Consultant atAbbeyTax, explains

Best practice• Maintain a diary or mileage log of where you are working from day to day and make sure you recordany one off journeys to attend training workshops or professional conferences.

• Keep all travel receipts, whether petrol receipts, tube or train tickets.

• Make sure all invoices for work done are numbered consecutively, have your home address shownclearly and state which pharmacies you worked at and on which day.

HMRC to investigate 50,000businesses for poor record keepingUp to 50,000 small businesses could be fined by the taxman forfailing to keep proper accounting records.Under an HM Revenue and Customs (HMRC) consultationthat took place earlier this year, the taxman wants tostart by scrutinising the records of 50,000 of the 2million SMEs it believes are sitting on unpaid tax billsdue to poor record-keeping.

Anyone found guilty of having underpaid tax as a direct result ofpoor bookkeeping, will face fines of up to £3,000.

HMRC’s ultimate goal is to improve the bookkeeping systems in 40per cent of the 4.9m small businesses where records aresuspected of being below acceptable standards.

The 2008 Finance Act gave HMRC the power to investigate up to50,000 businesses beginning in the second half of 2011.

The exercise forms part of HMRC’s Business Records Checks, whichwill ultimately target the 40 per cent of the UK’s 4.9 million SMEs,which HMRC believes are likely to have underpaid tax.

Forcing SMEs to keep better accounting records, will benefitbusinesses through improved financial management which in turn,will boost their chances of survival. It is also likely that those seen

to be fulfilling their obligations will have a lower chance of asubsequent visit from the taxman!

The importance of implementing an accurate bookkeepingsystem when running a business cannot be overstated. Forfree advice on record keeping, contact the PDA’s approvedAccountants, TWD Accountants.

Members are also eligible to claim a £40+VAT introductorydiscount off TWD Accountants standard first year’s fee of £225,for their sole trader accountancy and tax return service.

PDA members will also save a further £25 if they takeadvantage of TWD Accountants online bookkeeping system,receiving the service free of charge for the first year.

Telephone David Davies at TWDAccountants on 0161 480 5665for more details.

www.the-pda.org insight summer 2011 |17

A member (Miss SD) contacted thePDA Union in 2009 after being calledto a disciplinary meeting to consider,amongst other things, her MURperformance during the 3 days sheworked in the pharmacy.

The non-pharmacist store manager wasunder great pressure from the regionalmanager to maximise the number ofMURs and a target was set for one MURto be completed every day, even on thedays she was not at work. Ms S wasunhappy with the level of supportprovided in the pharmacy to reach thetargets and expressed this to hermanager as well as identifying a numberof factors outside her control which hadan adverse impact on the business.Immediately prior to going on holiday MsSD had drawn up an action plan toaddress the shortfall in the pharmacyperformance and posted this to hermanager. Upon her return to work Ms SDwas horrified to be handed a letterinviting her to attend a disciplinarymeeting to discuss her suspected “failureto complete all areas on the action planfor the pharmacy”. Ms SD felt that due toher holiday there had been noopportunity to progress the action planshe submitted just prior to going on

holiday and that no mention of thepotential for disciplinary action had everbeen raised by her manager. Ms SDcontacted the pharmacy superintendentwho passed the matter to one of hisregional pharmacy managers. Thepharmacy manager contacted Ms SD andclaimed he had no knowledge of whathad occurred to date and decided to haltthe disciplinary process. Ms SD went onsick leave as a result of the distresscaused by the handling of this matter.

At this stage Ms SD contacted the PDAUnion and was advised to submit agrievance about her treatment. Shesubsequently attended a meeting,accompanied by a PDA Unionrepresentative, where Ms SD raised anumber of complaints about her managerand the application of the disciplinaryprocess. After a lengthy delay the areamanager hearing her complaint did notuphold the grievance and an appeal wasthen submitted to the regional manager ofthe company. The appeal manageracknowledged there were some failings onthe part of the company in handling the

grievance process but ultimately supportedthe manager in her decisions. Afterdiscussing the options open to her with aPDA case manager, Ms SD decided to resigndue to her health and complete loss of trustin the company after her appeal wasrejected. A claim was made to anEmployment Tribunal claiming“constructive dismissal” which is wherethe employee alleges that the employer hasbehaved so badly it has effectivelydestroyed the relationship of mutual trustand confidence that normally existsbetween the parties. These types of claimsare often difficult to prove as the burdenfalls upon the ex-employee to demonstrateto the Tribunal that the company’s actionswere so bad they caused the relationship tobreak down. After careful legal scrutiny theexpert opinion of a PDA Union barrister wasthat this was a finely balanced case thatcould go either way. Despite theuncertainty over the prospects of success,due to the devastating impact thebehaviour of the company had on Ms SDand that other PDA Union membersworking for the same company werereporting extreme MUR pressure as well,the Union gave its full support to fundingthe case to help Ms SD seek redress and tosend a message to the Company about itsbehaviour towards pharmacists.

The Tribunal heard evidence from Ms SD, aswell as the store manager and grievanceappeal manager. The area manager whoheard the grievance was notable by hisabsence at the hearing and it transpiredthat he had recently resigned from thecompany after being the subject ofdisciplinary action himself followingseparate allegations from other PDA Unionmembers about his bullying style andpressure on pharmacists to undertakeMURs. The PDA Union had supported itsmembers in bringing these complaints toensure that the company took such badbehaviour seriously.

Although the Tribunal had sympathy for theclaimant and preferred the evidence of MsSD over that of the store manager, it didnot conclude that the company’s behaviourwas so bad it satisfied the test forconstructive dismissal. The Tribunalcommented that the store manager’sevidence given on oath was conflicting attimes and that her recollection of eventsdiffered from the evidence.

MUR pressure leads to Employment Tribunal Claim

An Employment Tribunal (ET) hasjudged that a pre-registrationgraduate who brought a claim ofvictimisation on the basis of herreligion has won her claim and beenawarded £35,000.

In an unusual case, the pre-reg complainedthat she was being treated less favourablythan other members of staff on the basis ofreligion. She was of a different religion toher colleagues and management of thecompany who were of the same religion aseach other and she felt that she suffered asa consequence.

The company dismissed her shortly aftershe complained and the Tribunal decidedthat although her dismissal was said to bedue to bad timekeeping and failure tofollow the absence reporting procedure, nodisciplinary action by the company wouldhave resulted had the pre-registrationgraduate not made her complaint aboutvictimisation. The Tribunal held that thecomplaint was therefore the reason for thedisciplinary proceedings and her dismissalwhich followed.

The Tribunal also found that her employerfailed to permit her to be accompanied ather disciplinary meeting having been toldthat there was no need for representationand failing to respond to contact from her

PDA Union representative. Two weeks paywas awarded for this alone; the balance ofthe £35,000 was to cover loss of earningsand for injury to her feelings.

Pre-registration graduates do not ordinarilyhave the right to bring unfair dismissalclaims. As Orla Sheils the PDA solicitor withconduct of this case explains “Employeesdon’t have grounds for an unfairdismissal case if they have less than oneyear’s continuous service although thereare a few exceptions to this rule. Pre-regs

have a one year contract and can be atthe complete mercy of their employersunless they can evidence that they havesuffered discrimination, harassment orvictimisation for instance”. Ms Sheils wenton to say “We often come across caseswhereby the pre-reg has obviously beensubjected to this but sadly they have notcontacted us within the time limit formaking a claim in the ET”.

Although she accepts that it isunderstandable that pre-regs don’t want to‘rock the boat’ during their training year“Members are often clearlydisadvantaged by failing to approach usfor advice at an early stage when theincidents happen” she said.

In this instance the pre-reg was badly letdown by the Head of Human Resourceswho was the wife of the managingdirector and owner of the company. Shehad no professional qualificationsrelating to her role and on cross-examination it became apparent that shedid not even have a rudimentary graspof the meaning of the term victimisationin a discrimination context, norknowledge of grievance and disciplinarymeetings despite the companyemploying over 100 staff; a fact whichdid not go unnoticed by the ET panel.

It found that she had made errors handlingthe disciplinary situation; however thecompany had corrected these when ithalted the disciplinary process after theintervention of the pharmacysuperintendent.

Although Ms SD ultimately lost her claim, anumber of benefits flowed from the case.Firstly Ms SD felt her position was vindicatedbecause the company was criticised for theway the disciplinary process was conductedand the manager’s evidence was shown tobe unreliable and contradictory; exposingthe truth about what happened is helpingMs SD regain her health.

The PDA Union exposed a culture ofbullying and pressure to undertake MURs

within this particular region not onlythrough supporting Ms SD, but by ensuringthe area manager was separately held toaccount for his bullying behaviour towardspharmacists generally about MUR targets.Our intervention ensured that appropriatedisciplinary action was taken against thisindividual and who ironically was chosen bythe company to investigate the claims ofbullying and pressure to perform MURSraised by Ms SD. His non-appearance at thehearing was a source of embarrassment forthe company when it had to explain that hehad since resigned and had beendisciplined for gross misconduct.

Finally and perhaps most significantlyof all, other pharmacists who work for

this company have credited the PDAUnion with being the lever for changewithin the organisation which justprior to the case being heard,reorganised its entire pharmacystructure to reduce the likelihood ofsimilar problems being experienced byother pharmacists.

Therefore although the decision in thisclaim was not what the member or thePDA Union wanted it to be, theramifications of our involvementshould have far reaching and positivebenefits for all pharmacists who workfor this particular company.

EmploymentTribunal; PreregistrationGraduate Awarded £35,000

www.the-pda.org| insight summer 201116

www.the-pda.org| insight summer 201118 www.the-pda.org insight summer 2011 |19

Over 80 per cent of locums have nosick pay cover. With the WelfareReform Bill set to make state benefitsmore elusive than ever, pharmacistsshould consider taking out an incomeprotection plan sooner rather thanlater.

Pharmacists study hard and work hard togenerate an income that can support agood lifestyle and provide security andstability for their family. All this may be atrisk for those unfortunate enough to sufferill health that limits their ability to work.Many of us take good health for granted,but the financial consequences of accidentor illness can be catastrophic, particularly asstate sickness benefits are less than £100 aweek.

Pharmacists might hope that theiremployer’s sick pay scheme providessufficient cover, but employee schemesmay not be as generous as you imagine.Some pay out nothing to employees withless than three months service, for example,others will only make payments for up to sixweeks, and at least one employer does notprovide any sick pay except at the linemanager’s discretion. Employers are alsodisciplining staff for absence and, whilstunder disciplinary sanctions (a verbal orwritten warning), exercising their discretionto refuse to pay employees during therelevant period.

A recent survey of PDA members illustratesthe startling gap in pharmacists’ sicknesscover:

• Over 70 per cent of those surveyedhave made no provision for long termincapacity (over and above theiroccupational sick pay scheme, if theyare employed) and 30 per cent don’tknow when their sick pay runs out.

Only 16 per cent are confident thatthey would receive sick pay for morethan three months.

• Locums appear to be the mostvulnerable, with 81 per cent of thosesurveyed not having any sick pay cover,and nearly two thirds having made noprovision for long term incapacity. Onlythree per cent of locums have cover formore than three months.

• Employees may assume that theiremployer will support them throughdifficult times, but 38 per cent admitthat they don’t actually know whentheir sick pay runs out. And only 7 percent of employees outside of the largemultiples are confident that they arecovered for more than three months.

Yet when asked what their ideal benefitscheme should include, many pharmacistshave high expectations (see table). Morethan 80 per cent believe that it is importantthat their scheme provides protection fromthe first day of incapacity. And 96 per centthink that their scheme should providecover that lasts until they recover (or reach65, whichever is sooner). PDA members canaccess a scheme that delivers all thesebenefits through our PDA Plus memberbenefits package – the Income ProtectionPlan from the Pharmaceutical and GeneralProvident Society (PG).

Income protection – don’t bewithout itA Which? report on income protectionschemes is unequivocal about the value ofincome protection schemes, concludingthat: “The one protection policy everyworking adult in the UK does need is thevery one most of us don’t have – incomeprotection.” The article gives advice onhow to assess whether or not you requireincome protection insurance. It suggestsyou ask yourself the following questions:

• Will your employer pay you apercentage of your salary indefinitely ifyou are off sick?

• If not, and you are part of a couple,could you pay all the bills and live offyour partner’s income indefinitely?

• If not (or you are single), do you havesavings you could live off indefinitely?

The vast majority of IP plans give only 50 or60 per cent of income back to the insured

and most policies pay out after you havebeen off work for a length of time known asthe ‘deferred period’. But a PG plan can payout the equivalent of up to 70 per cent ofgross income (and its payments are tax-free), and provide cover that lasts from thefirst day of incapacity all the way throughuntil you recover (or reach 65, whichever issooner). Day one cover is particularlyvaluable for the self employed – 82 percent of locums believe this is at leastsomewhat important, and 21 per cent thinkit “vital”, according to the survey.

A tough environmentThe Welfare Reform Bill, which is beforeParliament now, could make claiming statesickness benefit even more difficult. It isunderstood that Government plans include:

• New claimants will have to serve a 13week assessment phase before theycan move onto the higher rates ofEmployment and Support Allowance(ESA), will be subject to medicalinspection, and the GP won’t betheir own;

• At 12 months benefits will be meanstested, possibly excluding people withmore than £16,000 in savings.

A more robust medical test, the WorkCapability Assessment, designed to seewhether claimants have the ability toperform any form of work, is already inplace. Nearly 80 per cent of PDA memberssurveyed are unaware that state benefitsare ‘any occupation’ and can be stopped ifyou are unable to perform any work,regardless of your professional career.Reassuringly, PG can cover a pharmacistuntil they are able to resume theirpharmacy career – one of the benefits ofjoining a society that specialises in yourprofession.

The PG advantagesAll PG’s policy holders gain a rare financialadvantage in the form of an investmentelement designed to provide a cash lumpsum for their retirement. As a mutualorganisation, any surplus is returned to themembership – irrespective of any claimsthat an individual may have made. As aPDA member, we have arranged for youto enjoy a 15 per cent discount on yourfirst three years’ contributions.

PG will provide quotes for PDA members,based on their individual requirements -for further information about PG’sIncome Protection Plan call;0800 146 307 quoting ‘PDA2011’,or visit: www.the-pda.org/pdaplus

Be prepared for what life can throw at you, with an income protection planThe ideal sickness benefit scheme – members’ views

6.6 13.1 31.7 30.9 17.8

2.3 1.3 12.5 47.1 36.8

1.8 2.5 19.9 47.3 28.4

1.5 1.0 11.5 48.0 38

6.2 13.5 34.6 30 15.7

3.6 7.3 30.4 36.5 22.2

As a couple could you pay all the bills and liveoff your partner’s income indefinitely?

Will your employer pay you a percentage ofyour salary indefinitely if you are off sick?

The benefits of PG’s Income Protection Plan

� Cover from day one until you recover(or age 65, whichever is sooner)

� Up to 70 per cent of lost income covered

� Cover until you are able to return to yourprofessional career

� No penalties for claiming

� Investment element designed to provide lump sumat maturity

� PDA members get 15 per cent discount on firstthree years’ contributions

Not Little Somewhat Very Vitalimportant (%) importance (%) important (%) important (%) (%)

The scheme providesprotection from dayone of incapacity.

The scheme providescover which lasts untilI recover.

There are no penaltiesif I make a claim.

The scheme providescover until I am wellenough to return towork as a pharmacist.

The scheme isdesigned to provideme with a lump sumpaid at the policy’smaturity.

The scheme’s provideris owned by itsmembers.

www.the-pda.org20 www.the-pda.org insight summer 2011 |21

Earlier this year the GeneralPharmaceutical Council approvednew Continuing ProfessionalDevelopment standards, which cameinto force in July, and there is someconcern about how the newstandards will affect pharmacists.There are two significant changes tothe standards:

1. Pharmacists must now start atleast three of their annualminimum of nine CPD entries atthe reflection stage of the cycle.

2. Pharmacists must score an overallmark of at least 50 per cent.

The GPhC reports that nearly 2 per cent ofpharmacists do not achieve a high enoughscore. These figures may seem low, but 2per cent of the register is around 900pharmacists.

Fred Ayling, director of the CPD Centre,comments: “If pharmacists are notachieving the minimum 50 per cent markit is probably due to them being unsureabout what to record. It may be thatsome of their CPD happened so long agothey really can’t remember the detail.Some pharmacists may have becomecomplacent because they have heard it isso easy and that you really don’t need toprovide much information.”

The PDA is dedicated to supporting ourmembers with their CPD and we are

pleased to announce an important newdevelopment. All members now haveaccess to a free CPD helpdesk andcommunity members will soon receive afree three month subscription to the CPDCentre’s new Access package.Pre-registration trainees will receive freesupport for up to 12 months or until theyqualify. It is anticipated that the Accesspackage will be made available tomembers working in hospital andprimary care within the next 12 months.

The Access packageThe Access package is designed to supportthose who record their CPD for themselves,but who need some support to findmeaningful, relevant and innovativecontent. It also helps those who needregular reminders to record their CPD.The package consist of a monthlypublication, the ‘CPD Digest’, and two

part-populatedCPD entries. TheCPD Digestsummarises whathas beenhappening in theprofession thatmonth, how it isrelevant, its impacton your CPD, andreferences if youwant to find outmore detail.

The CPD Digestcovers things thatyou would expectit to, such as POMto P switches, forexample. But italso looks at things

that may be overlooked by some. Forexample, travel advice and the supply ofiodine to those travelling to the Far East inthe wake of the Fukushima nuclear fallout.CPD record sheets are provided for twosubjects each month, with some of thefields already populated.

How to access your freeAccess support packageYour subscription will start automatically.We will shortly be emailing all our members

to advise them about the start of their freeCPD support and to look out for any emailsfrom the CPD Centre. You will then startreceiving monthly emails from the CPDCentre. Should you wish to opt out you cando so at any time by clicking theunsubscribe link in the emails. Once yourfree trial period is at an end you cancontinue your subscription for a furthernine months at the hugely discountedintroductory rate of just £30.

CPD support forPDA members• Free CPD helpdesk for allmembers: 01795 533077

• Free three month Accesssubscription for communitypharmacists

• Free subscription for allpre-registration trainees

• Full range of packages availablewith 40 per cent discount atwww.cpd-centre.com

CPD Tips• Make sure what you record ismeaningful

• Stop and think when recording

• Remember that it’s not for theGPhC to fill in the blanks, soexplain yourself as you write

• The GPhC has had to refer anumber of pharmacists to Fitnessto Practise because it does nothear from them. Keep youraddress with the GPhC up to dateso you receive its requests foryour record to be submitted. Let itknow if you are going away for along time

• If there are gaps in your recorddue to illness or time off work, letthe GPhC know

| insight summer 2011

Since our relaunch in 2008 as Pharmacist Support(formerly the Benevolent Fund of the RPSGB) and focuson promoting our services, enquiries to the charity haveclimbed consistently. We are currently averaging 30-40calls a month from pharmacists, preregistration traineesand pharmacy students. The range of enquiries is huge,but there are common themes:

• Pharmacists who find themselves working longer hoursand with an ever increasing workload;

• Those who are given more responsibilities, have theirterms and conditions of employment changed, or facethe threat of redundancy;

• Others, often locum pharmacists, who are now finding itharder to find regular work;

• Victims of illness (either their own or that of a partner orclose family member), or bereavement resulting in asudden loss of income.

Reluctance to ask for helpMany people who contact us feel isolated and alone and arereluctant to ask for help, for a whole range of different reasons. Wehave had calls from experienced pharmacists who, because of theirsteadily increasing workload, feel they can no longer cope. Theyoften feel a sense of personal failure, which can be mixed withanger with their employer. Others have become ill and been offwork for some time before they contact us.

Making the initial call to ask for help is often the hardest step. It canbe a great help to hear about others who have been in a similarsituation, how they have dealt with the issues and where they arenow. Here is a story from someone we have helped who wanted toshare their experience to help others.

We were approached by a pharmacist qualified for over 30 years.Married with a grown up family, the pressures and highexpectations as the family breadwinner took their toll, leading toaddiction, theft, and eventually a nervous breakdown. As a result,the pharmacist was suspended by the regulator.

Pharmacist Support put her in touch with the Health SupportProgramme and helped fund residential treatment in CloudsHouse, as well as aftercare support. We also arranged for advice sothat she could claim benefit – initially for sickness and then while

seeking work. The charity helped with the costs of medical reportsfor the hearings. Following her full recovery, the pharmacist wasgiven permission to practise again.

We are pleased to report that the pharmacist concerned hasreturned to practice and now works full-time. In her own words, ithas helped her regain confidence and given her, “the opportunityto be of service to others, taking some of the self pity away whichwas nestling within me.”

The Health Support Programme provides a 24/7 confidentialhelpline both for pharmacists who are in need of help, as well asthose affected by a pharmacist with addiction problems.

A range of help availableNot all cases are as complex as the one above. As well as financialassistance, we can provide help in other ways, such as free andconfidential advice from our specialist Citizens Advice team,providing debt, benefits and employment advice, for example.

A pharmacist with a health condition that prevented her workingapproached us. She had been borrowing money and accumulateda significant unsecured debt. Our debt adviser worked with thepharmacist to negotiate affordable mortgage payments, and toagree full and final settlements with other creditors. The adviseralso advised on entitlement to benefit. As a result, the family wereable to continue living in their home, and the pharmacist’s reducedstress levels enabled her to consider taking on some freelance workfrom home.

People can often feel alone and isolated with a problem. ListeningFriends provides a free, confidential listening ear to people goingthrough a difficult period. In the current climate we have had callsfrom managers under great stress, from students worried aboutexams, and from preregistration trainees having problems withtheir placement.

Members of the PDA or other unions have access to advice,support and representation through their union. PharmacistSupport also has an employment specialist to whom we referemployees encountering problems at work. We have helpedpeople to resolve issues around unlawful deductions from wages,notice periods and pay, changes to contracts, and discrimination.

You are not aloneAny one of us can get into difficulties, fall on hard times or needto talk over worries with someone who understands. Althoughwe like to think we can manage all aspects of our lives,sometimes we are just not able to.

Our message is that you need not struggle or suffer alone. Askfor help: contact your union or Pharmacist Support and startthe process of resolving the problem.

Further details on Pharmacist Support and our servicescan be found at: www.pharmacistsupport.org

To speak with a member of the support team,call 0808 168 2233, or email us at:info@pharmacistsupport.org

Finding the courage to ask for helpPDA helps members meetnew CPD standardsFree CPD support now available to all community members

Pharmacist Support provides a wide range of support to pharmacists going through difficulttimes, and has helped change lives. Paulette Storey, the charity’s Information Officer, explains.

Around 900 pharmacists have failed to reach GPhC minimumstandards in their CPD.

www.the-pda.org| insight summer 201122 www.the-pda.org insight summer 2011 |23

Why the PDA will continue to challenge the Guild of HealthcarePharmacists view on Professional IndemnityFor many years, the Guild of HealthcarePharmacists has always stated thatwhen a pharmacist works in a hospitals/he is covered for ProfessionalIndemnity through their employers’vicarious liability arrangements. Wehave consistently recommended topharmacists that they should not relyon their employers’ cover, but insteadhave personal protection through theirown independent insurance. We havedescribed on pages 10 and 11 whyreliance on an employer provided covermay place individual pharmacists at asignificant disadvantage.

More recently, the Guild havestated on their website thatthey now accept that inreality many pharmacistshave now taken outtheir own independentProfessionalIndemnityinsurance.

The Guild’s view as it appears on theirwebsite is that this has happened because“pharmacists have felt pressurised intotaking out their own professional liabilityinsurance through influences from variousquarters.”

The PDA does not accept that this is thereason why so many pharmacists havetaken out their own independentprotection, we simply believe it is becausethey have exercised common sense. Itcannot be realistic to suggest that morethan 5,000 who work in the hospital settingwould have taken out independentprotection simply because they have felt

pressurised to do so.

The Guild then goes on to state onits website that;

“many pharmacistsemployed in the NHS workextra hours in communitypharmacy and a significantnumber are employed parttime in both hospital and

community pharmacy. NHSemployer’s liability will not cover

work in the communitypharmacy…… and whetherthe employer will seek torecover damages from theemployee is not clearcut.”

In a brochure entitled‘Professional IndemnityInsurance explained’the Guild now states thatthere have been some‘fairly significant shifts inthinking’. It declares thatbecause of the new roles,

particularlyprescribing, some ofthe guidance fromthe Department of

Health and otherssuggests that individual

insurance was indeed arequirement. Furthermorehospital pharmacists seemed tobe asking for a belt and bracesapproach to ProfessionalIndemnity, if only for peace ofmind.

It is, in our view good to see that theposition of the Guild appears to bechanging gradually; the position that theyare now moving to is in essence one thathas been held by the PDA since itsinception and whilst we welcome theirchange of policy. However, we believe thatthis change is not only overdue, it should gofurther.

We feel that we have to continue tochallenge the Guild on its position onProfessional Indemnity, because although ithas now begun to accept that there is aneed, their proposed solution in our viewmay raise a number of potentially seriousconcerns.

The issues with the GuildInsurance positionProviding cover on a contingent basis

The Guild, through the Unite Union has nowarranged an insurance scheme forpharmacists; the Guild website states that;

“the Unite scheme covers you foremployed work……. It is dependant uponthere being employers’ vicarious liabilityinsurance in place in the first instance.”

The Guild scheme is effectively one that isbased on contingent liability; it requires anemployer’s insurance to be in place. Itprovides protection in the event that theemployer’s (the NHS) insurance fails orrefuses to cover the employee. We will notseek to deal with the issue of the likelihoodof the NHS insurance failing in this feature,we are much more concerned with the veryfact that the employer, through their NHSinsurance, does seek to provide the coverand that it does pay for the pharmacist’sdefence. We have always maintained thatpharmacists should have the choicewhether or not they want to rely on theiremployer’s liability arrangements at all.What the PDA has always provided isinsurance protection for pharmacists in away that means that they do not need torely on their employer to defend thembecause of the conflicts of interests thatthis can cause. We describe the reasoningbehind our concerns over vicarious liabilityin some detail on pages 10 and 11.

It does not provide cover for selfemployed locum pharmacists

Explained in the Unite Unions (PLI)‘Frequently Asked Questions’ (FAQs) webpages and comprehensively described inthe associated insurance policydocumentation as well as further endorsedin the Guild’s own explanatory material, isthe very clear message that the insurancepolicy will only provide cover for any workundertaken in an employed but not in a selfemployed capacity.

An excerpt from the Frequently AskedQuestions;

“Am I covered for private work?”

“Cover will apply when employed in theprivate sector, but will not apply if themember is self employed – i.e. workingfor a fee as opposed to being employed.”

Further in the FAQs it states;

“If you do self employed work, you mustmake your own arrangements regardingcover.”

However, elsewhere, on the Guild website itis stated that;

“pharmacists who are members of Guildand carry the additional Unite [insurance]will have cover in place whether they area direct employee or a self employedlocum”.

We believe that these apparentlycontradictory statements could causeconfusion amongst hospital pharmacists.

In a President’s monthly report (October2010), referring to the Guilds insurancescheme, the view is reinforced that;

“those GHP members that have thecontingency policy are covered whenworking for a pharmacy employer etc.whether as a direct employee or as a self-employed locum”

He continues,

“I am sure that many junior (and senior)pharmacist members who undertakelocums will welcome reassurance fromthe additional cover provided for only£15.”

However, in reality, the vast majority ofhospital pharmacists who work as locums

especially in the community, do so on apure self-employed basis and thereforewould not be covered by the Guild scheme.We would recommend that any hospitalpharmacists who have taken out a PIinsurance policy should check as to whetherit meets with their requirements.

It does not provide cover forpharmacy locums working for themajority of locum agencies

We have been asked by a number ofpharmacists whether the Guild scheme willprovide them with cover if they are workingvia a locum agency. This confusion seemsto have arisen because of theiremployment status; in the FAQ section ofthe Unite website which deals with theagency question, the answer given is thatsome agencies dealing with healthprofessionals are deemed to be theemployer and therefore the member wouldbe covered and that Unite members areurged to check with their agency.

This answer is hardly unsurprising given thecontext. The Unite website has quite rightlyreflected the view that in some healthcaredisciplines, the common practice is that thelocum healthcare professional becomes aworker of the locum agency, often they arepaid by the locum agency and that theirpayroll is operated in the normal way as ifthey were an employee. In that instance thelocum would be deemed an employee and

would be covered under the scheme.However, when we consider how thepharmacy model works , the vast majorityof locum agencies, especially thoseproviding services to locums in thecommunity setting are simply directing thelocums to pharmacies where they receivetheir pay directly from the pharmacy anddo so an a self employed fee basis.Consequently, such agency locums wouldnot be covered under the Guild scheme.

More than 5,000 pharmacists cannotbe wrong

We will continue to challenge the Guildposition on professional indemnityinsurance. We have consistentlymaintained that pharmacists need tounderstand the wider issues relating totheir professional indemnity and thepersonal liability risks that they carrywhen working as a pharmacist. We hopethat in due course the Guild will come toaccept that pharmacists should alwaysrely on professional indemnity insurancebut only then, if it is totally independentof their employer.

To date, more than 5,000 individuals thatwork in the hospital pharmacy settinghave already done just that, by joiningthe Pharmacists’ Defence Association.

insightThe magazine of the Pharmacists’ Defence Association

summer 11

Also inside

Why hospitals should be exemptedfrom the RP regulations

Hospital EditionIS IT WORTH ACANDLE?Some senior hospital managers say “Don’t worry, theTrust’s vicarious liability will cover you”, but can yourely on the Trust to robustly defend your reputation?

Protecting an individual pharmacist, after a serious incident, requires the spirited defence of thatindividual by an organisation experienced in pharmacist defence. The PDA is solely focused onthe pharmacist and does not seek to protect the employer. In some cases, we even drawattention to the liability 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 an employer would fund a defence strategy for a pharmacistthat may be detrimental 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 Trust’s 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 £800,000 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

PDA237/0711

PDA challenges Guild

Questions over Guild policy onPI insurancepages 22-23

Tackling band changes

The impact of NHSrestructuringpage 4

Walking through a storm

Will your employerprotect you?pages 10-11

Employment Tribunal

Pre-reg awarded £35,000page 17

PDA challenge toGuild policy onPI insurance