Are people becoming ‘increasingly litigious’?

With numbers of complaints against pharmacists rising across the country, what do you need to know to avoid getting a notification?

Professional indemnity experts are seeing a trend of increased numbers of notifications about pharmacist practice happening around the country.

“It’s our belief that this is partially enabled by the ease of the online complaints process,” says PDL professional officer and pharmacist Gary West.

“We’ve seen an increased number of reports coming through to us, and a percentage of those reports would be notifications from the regulatory agencies.

“Our analysis suggests the reasons are multifactorial—it’s not that pharmacists are necessarily making more mistakes, but it’s often related to greater propensity for the public to complain or have an expectation of a certain level of service,” says Mr West.

“These days the process of making a complaint is relatively easy and it’s also online, so often there’s no mention of the patient’s displeasure directly to the pharmacy. The first thing the pharmacist knows is they’re getting a notification that they’re having to respond to.”

Dispensing errors, provision of expired medications and dissatisfaction with service are probably the most common reasons for notification, explains Mr West.

“Dissatisfaction with service could be because it was declined by the pharmacist because of the pharmacists’ concerns for the wellbeing of the patient, or the medicine wasn’t able to be supplied due to regulatory reasons, or there was a miscommunication or misunderstanding.”

Dispensing errors include situations where a person receives the wrong medication meant for someone else, or misinterpretation of the prescription with medicines that sound alike and look alike being mixed up.

Another situation includes wrong strength of the drug being provided.

NSW has also seen an increase in notifications due to deficiencies in the way pharmacists and pharmacy owners are running the opioid replacement therapy program.

Are people more litigious these days?

Modern society is becoming “increasingly litigious,” says Scott Ames and Heather Nieuwenhoven from Meridian Lawyers in an update for PDL.

“With that in mind, pharmacists should anticipate that they may be contacted by a statutory authority or investigator at some stage during their careers,” they say.

“Although it is natural to want to cooperate with an investigation in a timely way, participation in information interviews or discussions is usually ill-advised.

“Best practice includes notifying PDL or your professional indemnity insurer, and obtaining legal advice.”

In 2017-18, 1.9% of pharmacists in Australia were subject to notification to AHPRA.

“All of these complaints are stressful for the pharmacist,” says Mr West.

However he points out that the majority of notifications go to no further action.

In the 2017/18 reporting period, 55% (225 out of 411) of AHPRA notifications about pharmacists went to ‘no further action’, while 30% of cases led to a caution or reprimand.

A further 12% had conditions imposed on their registration.

“One of our jobs is to try and reassure pharmacists that while this is a serious process, and while the public has a right to make a complaint if they feel entitled to—while it is stressful and it does take time for it to be resolved—the majority end up in no further action,” says Mr West.

Mr Ames and Ms Nieuwenhoven confirm this.

“It is important to keep perspective because in the vast majority of cases, no regulatory action is taken,” they say.

“If action is taken, it is very rare that suspension or cancellation of registration would be in contemplation.”

Reducing the risk

Mr West says there are strategies for pharmacists to minimise their risk of receiving a notification.

“When it comes to dispensing errors and giving medicines to the wrong patient, it means having good processes, well-trained staff, following a protocol like the PDL Good Dispensing Guide, and having some systems to make sure that whenever a staff member is handing a medicine out, they’re able to accurately confirm the identity of the patient,” he says.

“Good dispensing process would minimise the risk of the wrong drug or the wrong strength, good systems and protocols could help prevent expired stock being missed, and good training of staff and some sort of process to confirm the identity of the client could minimise the risk of the wrong patient. So that’s all about process and procedures, for those types of errors.

“When it comes to dissatisfaction, a lot of the time it comes down to good communication. If the pharmacist is deciding not to supply, clearly making the patient aware that they’re choosing not to supply for reasons that relate to their wellbeing and the potential risk to them, or communicating that they’re unable to supply because the regulations around the supply of that medication don’t allow a pharmacist to do so.

“Or to just ensure that they can communicate in a manner that the patient understands the intention of the pharmacist and not necessarily defer some of that communication to their assistants. So if there is a misunderstanding or a complaint, that it’s clarified and explained in a professional manner,” says Mr West.

“And then I suppose the third area is complying with all the requirements, particularly regarding restricted drugs such as the S8s so that they ensure they’re stored appropriately, documented and recorded appropriately, and that prescriptions are compliant.”

Case study

A recent notification example was a pharmacist who was trying to provide a professional service to a patient, explains Mr West.

“This patient was unwilling to respond to certain questions that the pharmacist was asking about their health, that would be required by the pharmacist to perform the professional service so it could be recorded in GuildCare.

“Despite the pharmacist explaining the privacy guidelines that they’re bound by and the importance of having the patient information to make an appropriate clinical decision, the patient refused and so the pharmacist declined to undertake the service,” he says.

“Because of the dissatisfaction of the patient with the refusal to undertake the service and allegations of the potential for a breach of privacy, a formal complaint has been lodged.

“We believe the practitioner acted in the most professional manner, however people are sometimes dissatisfied with the process or procedure and they choose to make the complaint.

“PDL will support pharmacist members who are practising professionally and not knowingly breaking the law, and would support them if they receive a formal notification.”

PDL is the owner of APPco, the publisher of AJP.

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