On the evening of last Friday, April 10, NHS England published details of the first commissioned service with funding for community pharmacy in response to the COVID-19 pandemic. I have some significant concerns about this service, which broadly fall into two categories – vicarious liability for the actions of volunteers, and the potential difficulty in contractors actually getting paid under the terms of the service.
Throughout the service specifications, NHS England emphasises that volunteers must be used to deliver patient medications wherever possible and that paid delivery by the pharmacy under the service is a last resort.
Although pharmacy professionals have no input into or control over the enrolment of volunteers, the burden of ensuring that a volunteer is an “appropriate person” to deliver medicines to the homes of vulnerable patients has been placed squarely on pharmacists. NHS England says that “the pharmacist must be satisfied that the volunteer is an appropriate person to deliver medicines to the patient”. How are pharmacists supposed to make this assessment, particularly in a matter of moments?
And what responsibility do pharmacists carry for the actions of the volunteers they’re required to entrust with patient medications, including schedule 4 and 5 controlled drugs? Vicarious liability is the rule of law under which one person – such as, but not limited to, an employer – may be held responsible for the actions of another individual. It is possible, if not in fact likely, that a pharmacist could find themselves facing a claim from a patient as a result of error or wrongdoing by a volunteer.
The obligation imposed on the pharmacist to be satisfied as to the appropriateness of any volunteer increases the pharmacist’s degree of control over the volunteer and therefore, in legal terms, makes it more likely that a court would find the pharmacist vicariously liable for the volunteer’s actions.
As a result of concerns expressed regarding this potential liability, on Wednesday the Royal Pharmaceutical Society (RPS) and General Pharmaceutical Council (GPhC) issued a joint statement, saying: “Pharmacy professionals acting in accordance with the standards and using NHS Volunteer Responders in good faith in line with the service specifications of the pandemic delivery service will not be regarded as responsible for actions of other people outside of their control.”
This statement was intended to be reassuring and was clearly made in an effort to support pharmacy professionals. However, in legal terms, it was simply not correct. After reading the statement, I contacted the RPS and GPhC to highlight the issue and explain that the legal position with regard to vicarious liability is complex and nuanced and, in any event, something on which a court – rather than the RPS or GPhC – would have to adjudicate.
To their credit, within 24 hours the RPS and GPhC amended their joint statement to make clear that they meant only that they would not consider a pharmacy professional responsible for the actions of a volunteer, and would presumably therefore not pursue proceedings such as fitness-to-practise cases arising from such actions.
Hence, the issue of vicarious liability (in law) for the actions of volunteers remains very much a live concern. Under the terms of the Coronavirus Act 2020, the government could introduce a system of indemnity to cover pharmacy professionals in respect of legal claims arising from initiatives such as the community pharmacy pandemic delivery service. However, no such system has been implemented to date. Pharmacists are exposed – unfairly, in my view, and at a time when they have neither the time nor the funds to set about exploring insurance cover for the actions of volunteers.
My second significant concern about the new service relates to the improbability of a pharmacist being able to both follow the sensible guidance issued by representative bodies including the Pharmaceutical Services Negotiating Committee (PSNC), the RPS and the National Pharmacy Association regarding the use of volunteers and then actually get paid under the terms of the service.
The guidance issued by all three bodies advises pharmacists to ensure that any volunteer used has a recent Disclosure and Barring Service (DBS) certificate. This is eminently sensible advice. However, NHS Volunteer Responders are not required to hold a DBS certificate, apart from those performing patient transport roles. The arrangements for independent, local volunteering schemes may of course differ.
The service specification for the delivery service emphasises repeatedly that the payment per delivery of £5 plus VAT will only be made to a contractor where no volunteer, either from a local scheme, or an official NHS Volunteer Responder, has been available to assist. If a contractor adheres to the advice issued by pharmacy bodies and rejects a volunteer on the basis that they do not hold a recent DBS certificate, will their claim subsequently be rejected?
As it is currently worded, the service specification does not permit a pharmacist to reject an appropriate volunteer who is available to assist, including those non-DBS-checked NHS Volunteer Responders. The pharmacist is in an impossible position. I believe that NHS England needs to either amend the wording of the service specification, or provide assurance that only those volunteers who do hold DBS certificates may be deemed “appropriate” to undertake pharmacy delivery tasks.
Before concluding, I would like to emphasise that I recognise that 99.99% of people who have volunteered to help during the pandemic are the most altruistic, very best members of society. In many ways it feels churlish to express concern about their efforts. My apprehensions about the new service may come to nothing and I certainly hope so.
However, lawyers must consider risk. The potential risks arising from the new service are, unfortunately, considerable. Ultimately, pharmacists are being asked to participate in and take responsibility for sending unchecked individuals to the home addresses of vulnerable individuals, potentially conveying controlled drugs. Although the current pandemic requires some deviation from normal practices, is this service just a bridge too far?
Andrea James, healthcare partner at Brabners LLP