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Mrs Brant has been totally cleared by the Statutory Committee of the RPSGB. Lord Fraser of Carmyllie rejected...
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Author Nigel Morley, MRPharmS
Mrs Brant has been totally cleared by the Statutory Committee of the RPSGB. Lord Fraser of Carmyllie rejected entirely that she had acquired any taint from her professional association with the uniquely evil Dr Shipman.
He went on to state:
'She is more to be praised than pilloried. Had it not been for her meticulous record-keeping retained long after the law required it of her, much of what the police uncovered about Dr Shipman would have been lost for ever.'In regard to the two RPSGB Expert Witnesses, Lord Fraser said their testimony did not support any assertion of malpractice. He therefore sustained the submission of ‘no case to answer’ made by Mr David Aaronberg, the Counsel for Mrs Brant.
It is believed that uniquely, this is the first occasion at which the Statutory Committee of the RPSGB have ruled that there is no case to answer, before calling the pharmacist whose conduct has been complained of, let alone the defence witnesses on her behalf.
All Healthcare professionals would wish to congratulate Mrs Brant who, in the words of Lord Fraser, “has been a pharmacist of unimpeachable integrity.”
Whilst not quoted by the Statutory Committee, one written Expert Witness report to the Inquiry had stated Mrs Brant’s misfortune was to be in the wrong place at the wrong time, in a unique situation not of her making.
There were many institutions and individuals throughout Shipman’s career that were in a position to apprehend Dr Shipman, of which Mrs Brant was one. Many of these were policy makers or in an inspectory, regulatory or supervisory role. Like everyone else, Mrs Brant failed to detect Dr Shipman’s unlawful activities.
Shipman was able, over nearly three decades, to fool primary and secondary care pharmacists, secondary care and primary care physicians, the Family Health Services Authorities (FHSA) and Health Authorities, the medical referees of the crematoria, Regional Medical Officers, police and pharmaceutical inspectors various parties in the abortive first police investigation, regulators and coroners and others responsible for post death procedures, including Funeral Directors. Many more capable than Mrs Brant of detecting a rogue maverick. Indeed, Shipman was held in high esteem by local colleagues, having been a past secretary of the Local Medical Committee. Everybody and nobody was responsible.
For future cases concerning pharmacists. it may be worth noting the changes that have been agreed concerning new disciplinary procedures for doctors and dentists employed in the NHS.
The relevant DoH document “Maintaining High Professional Standards in the Modern NHS” states:
Pharmacists will appreciate this is an official NHS document laying down how the future misconduct and other disciplinary issues will be dealt with concerning doctors and dentists. It is of course not yet relevant to retail pharmacists, but it shows current thinking, which of course undoubtedly has been influenced, with the benefit of hindsight, of the Shipman case.
It is perhaps unfortunate that the “system” did not adopt the above philosophy in the case of Mrs Brant.
The link to this document can be found at: http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance
Nigel Morley is the author of “Controlled Drugs in Primary Care, The Law, Probity and Good Practice” and an Expert Witness in this subject.
Mrs Ghislaine Brant came before the Statutory Committee on the following complaint as is set out in the Notice of Inquiry:
That between 22nd February 1993 and 27th August 1993 she dispensed or was involved in dispensing on 13 or 14 occasions single 30mg ampoules of diamorphine to 13 patients, on each occasion the prescriptions having been written by Dr Shipman.
Of the 5 failures summarised only one is particularised, namely: “That (she) failed to exercise sufficient scrutiny of Dr Shipman’s prescriptions for single 30mg doses of Diamorphine”.
After 2½ days of evidence led by the Royal Pharmaceutical Society Mr David Aaronberg on her behalf submitted that there was no case to answer.
The Rules governing the Statutory Committee (The Pharmaceutical Society (Statutory Committee) Order in Council 1978) make no specific provision for such a submission being made but in our view there is no prohibition on such an argument being advanced and it is implicit in the Rules that such a submission can be made. It can only be in the interests of justice that it should be allowed to be made.
Accordingly we have not disallowed Mr Aaronberg from making his submission. In an elegant counter-argument Miss Foster QC urged that whatever view we took of the evidence, we should, in the public interest, allow the case to run its full course.
There would have been some force in that argument if we were in the inquisitorial position of being able to require Mrs Brant to give evidence and subject herself to examination and cross-examination and questions from the Statutory Committee. The Regulations that presently govern us, however, give us no such authority. We are not in the role of a French “juge d’instruction” free to roam and free to question at large. I repeatedly advise my colleagues on the Statutory Committee whether they are qualified and registered pharmacists or lay members of the Committee like myself that it is not for us to fashion a complaint against an allegedly errant pharmacist. Our task is to determine whether the complaint set out in the Notice of Inquiry – nowadays invariably by the Council of the Royal Pharmaceutical Society – has been made out.
The pharmacists on the Committee do of course bring to bear their professional expertise on the issues raised and time after time it is welcome and invaluable. However repeatedly as the legally-qualified Chairman I counsel them that their expertise is to be exercised only in relation to matters in the Notice of Inquiry and in relation to the evidence before us. To pursue some failing the Council of the RPSGB has not identified in the Notice of Inquiry is not their role if compatibility with the European Convention of Human Rights is to be secured. We are the independent and impartial tribunal not the “aides” to the complainer.
While Mr Aaronberg opened, advising us that he was advancing a ‘No Case to Answer’ submission and Miss Foster QC responded in like manner, it was not a classic ‘No Case to Answer’ submission and response in that at various points in their respective arguments we were invited to consider not only what was set forth on the part of the Royal Pharmaceutical Society but parts of Mrs Brant’s case which had been admitted and accepted.
Be that as it may, what we have to consider is whether on the basis of the complaint focussed within the Notice of Inquiry, there is substance in the complaint against her taken at its highest without regard at this stage to the credibility of witnesses, which would allow us to conclude disciplinary action should be taken against her.
For the reasons I shall set out (and this is not a criticism of the Royal Pharmaceutical Society) at the end of the Society’s case we could not discern a case requiring her response.
The witnesses for the Society were admirably frank, professional and clear in their evidence. That we are entitled to expect from witnesses of a senior regulatory body and we would wish to place on record our appreciation of their evidence but taking that evidence at its highest at the end of the day we cannot see what it is that is being alleged Mrs Brant did unprofessionally to cause us to conclude that her name should be removed from the Register.
As the Courts have remarked more than once that is the test we are bound to apply even if our subsequent conclusion is that we can restrict our sanction to the lesser penalty of an admonition or reprimand.
There is a context to be set here. Our sponsoring minister, Lord Warner described Dr Shipman at a meeting of the Council of Health Regulatory Excellence in 8th March 2005 as “uniquely evil”. Although Dr Shipman committed suicide in prison without ever explaining his motives in killing so many of his patients, we would respectfully endorse Lord Warner’s description. We are, of necessity, unsure about the number of patients he murdered but we would recognise, as did Dame Janet Smith, that the figure probably significantly exceeded the number in respect of whom he was convicted of murdering in a criminal court.
We would only observe in passing that long before Dr Shipman encountered Mrs Brant he had been murdering his patients and long after she was no longer in the picture his criminality continued.
Dame Janet Smith assessed that over the relevant period Dr Shipman had form a variety of sources amassed 24,000mg of diamorphine and had used that to kill off his patients not just accelerating the deaths of elderly patients whose demise was imminent and inevitable in order to shorten their pain but others who were younger, those who had prospects of recovery or those who could have expected at lest and extended period of life before them.
Out of this massive quantity of 24,000mg of diamorphine the complaint against Mrs Brant is that against wholly lawful and modest prescriptions over a period of 6 months she dispensed at maximum 390mg of diamorphine i.e. at most about 1.6% of what he accumulated and used.
No evidence was led before us that she wilfully or recklessly dispensed quantities of diamorphine which she knew or ought to have known were excessive. On the contrary the complaint against her is only that she failed to spot a pattern of prescriptions for relatively modest quantities of diamorphine. There is and can be no suggestion that she had any knowledge of the use to which he might put it.
As we understand the situation, for someone wholly unused to diamorphine the appropriate dosage may be as little as 2.50mg. However at the other end of the scale for a patient used to diamorphine and in acute pain a dosage of no less that 250mg might me appropriate.
As I have indicated, the complaint against Mrs Brant is that she failed to notice an unusual pattern of prescribing at 30mg. That is higher than the minimum dosage that might be called for but it is more than two hundred mg below the top figure that a careful, considerate GP might wish to use to alleviate severe pain and which would have excited no attention at all.
The Key witnesses for the Royal Pharmaceutical Society before us were Mr David Young, who has been an Inspector for the Society since 1985 and Robert Hallworth who has exceptional qualifications in pharmacy and was properly adduced before us as an expert witness.
Dealing with Mr Young first, he is an able and conscientious Inspector of the Society. Had he been slapdash and transparently irresponsible that might have coloured out judgement but he is neither. On a number of occasions he had visited Hyde pharmacy for which Mrs Brant had been responsible but with regard to controlled drugs he had noticed nothing untoward although it was part of his responsibility to check the Register of controlled drugs.
Interestingly at p.51 C-D of the Transcript he acknowledged that
“I do consider is to be part of my job to observe and report on unusual prescribing practices of prescribing doctors”and he gave an insightful example of just such a pattern which he had pursued and which revealed the prescribing doctor was personally abusing the drug.
However his examination of Mrs Brant’s meticulously kept records had aroused no suspicion on his behalf. Nor incidentally had it caused another pharmacist who made an entry in the selfsame Register to voice her suspicion.
It was only when Dame Janet Smith at a later part of her Inquiry had sent to him a ‘Salmond’ letter that he slightly changed his tune. This it became his argument that pharmacy staff were better placed that he was as an Inspector to spot unusual prescribing practices. We are not persuaded by this argument.
The premise on which Inspectors operate on behalf of the RPSGB must be that they know best and communicate on behalf of the Society not only what is required of pharmacists under the Code but what they ought to be doing to match best practice. Of course it is for the individual pharmacist to keep the Controlled Drug Register up-to-date and show in chronological order supplies in and dispensing out but the role of the Inspector is not only to observe patent errors in the discharge of those duties but as Mr Young acknowledged himself it was his duty to report upon unusual prescribing practices by doctors.
In this case he did not suggest that there were any unusual prescribing practices until threatened with criticism by Dame Janet Smith’s Inquiry and even then his criticism was in the muted form that it was the pharmacy staff who were better placed that himself to spot the unusual practices.
In our view if there were patently obvious unusual prescribing practices, Mr Young, the other qualified dispenser and the police should have picked up these irregularities. None of them did and it would be grossly unfair to single out Mrs Brant as culprit.
The reality is that the usual character of Dr Shipman’s prescribing pattern on emerged with 20/20 perfect hindsight vision after his conviction as a mass murderer. In 2005 we might expect pharmacists to query a GP’s prescribing suspecting that patients were being hastened to their death but in 1993 it was unthinkable that pharmacists who match the high standards Mrs Brant set herself would harbour worries that a GP was set on murdering his patients.
Post-Shipman the profession will have to be on guard and ever-vigilant but that is a long way from their pre-Shipman state of alert requiring them only to watch for slipshod GPs, the incompetents, the self-abusers or the indecipherable. All these types of queries over prescriptions were well-recognised by the profession and any falling below those professional standards has been fiercely penalised by this Committee.
Guilt by association is a wholly unacceptable jurisprudential concept and forms no part of the approach of the Statutory Committee. Miss Foster QC, one of the most assiduous and skilled pleaders in London never sought to rely on this odious concept but I fear that in a wider world because the luckless Mrs Brant had a professional association with the “uniquely evil” Dr Shipman she is regarded as being in some way tainted. We reject that entirely. She is more to be praised than pilloried. Had it not been for her meticulous record-keeping retained long after the law required of her, much of what the police uncovered about Dr Shipman would have been lost for ever. From what I have commented upon thus far it will be obvious that we have some sympathy with Mrs Brant who has hitherto been a pharmacist of unimpeachable integrity.
However, it would not be unusual for us to turn on a pharmacist like her where we regard the falling away from professional standards as so grave as to warrant removal from the Register.
In this case we cannot do so and we conclude that she has no case to answer.
In a spirited and eloquent conclusion Miss Foster QC urged us to reject the submission and allow the case to continue to its conclusion. For the reasons I have already outlined that does not appear to us to be an option if we are not to be oppressive. While we would be most willing to countenance any suggestion that this is a complaint the RPSGB should not have pursued, we see no purpose in unnecessarily protracting it.
In our views Miss Foster QC for the RPSGB had an intractable problem in the balanced evidence of her expert Mr Hallworth. He is well experienced in the profession and we listened to his evidence keenly. However following on a most interesting question from Mr Bill Rucker his question and answer to Mr Aaronberg was this:
Q: In relation to Mr Rucker’s question...that although the prescribing looked unusual...it might be some people’s opinion that it would not be necessary to challenge it.
A: (Mr Hallworth): “This is right, that would appear to be the situation with some people would not.
Q: “You are not suggesting that those people who hold that view are unreasonable?”
A: “No, perfectly reasonable.”
In summary what then is the case for RPSGB? Mr Young sort of wants to pass the responsibilities back to the pharmacy staff. While acknowledging his scrutiny of the particular Register did not put him on alert and although they were not called before us, the entry in the Register gave neither another pharmacist nor the police any cause for concern. Then as Mr Aaronberg teased out at the very end of his further cross-examination, Mr Hallworth conceded in his very balanced evidence that anyone who took a contrary view that these entries did not require to be challenged or queried was “perfectly reasonable”.
We were pointed to no provision in the Code requiring a challenge to a Dr Shipman’s prescribing pattern. At p.15 of the Transcript Miss Foster QC with admirable brevity sets out the Society’s case:
“It is the Society’s case that Mrs Brant failed in her duty in not recognising that the repeated doses of 30mg of diamorphine gave rise to queries about it’s use that Mrs Brant should have raised with the Doctor, and reported, if not logically and adequately resolved, to her supervising chemist, the RPS Inspector or the relevant police officer, the CIO, all of whom were available to her.”That was an impressively precise opening, Her misfortune was that the Society’s Inspector on whom she relied did not support that bald assertion. Nor did the expert witness she adduced.
In such circumstances we would regard it as both proper and inevitable that we should sustain the submission of ‘no case to answer’ made by Mr Aaronberg. Neither the RPSGB nor Miss Foster QC should reflect that this complaint should not have been brought. There was a serious professional issue to be explored. That has been done but our conclusion on the evidence is that there is no case to answer.
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