Businesses – Commercial offences – False descriptions – Labelling

R v Elizabeth Lee: CA (Crim Div) (Lord Justice Aikens, Mr Justice Royce, Judge Radford (Recorder of Redbridge)): 24 June 2010

The appellant (L) appealed against her conviction for supplying a medicinal product with a misleading label contrary to sections 85(5)(b) and 91(1) of the Medicines Act 1968.

While L had been working as a self-employed locum pharmacist at a pharmacy operated by Tesco, a customer (C) had been supplied with the wrong drugs. C had presented a prescription for a steroid, prednisolone. The pharmacy had produced a proper dispensing label for prednisolone but had mistakenly attached it to a box of beta-blockers, propranolol, which had then been given to C. After taking some of the propranolol tablets C had collapsed, requiring hospital treatment. It was not possible to determine either who had attached the label to the box, or who had handed the box to C, but it was clear that in accordance with the pharmacy’s procedures, L had initialled the dispensing label to indicate that she had checked the item. At trial, the recorder ruled that a pharmacist in L’s position supplied a medicinal product for the purposes of section 85(5)(b) of the act when she dispensed medication. Following that ruling L pleaded guilty. A count of supplying a medicinal product that was not of a nature demanded by the purchaser, contrary to sections 64(1) and 67(1), was ordered to lie on the file. L was given leave to appeal, despite her plea, on the basis that the proper scope and application of section 85(5) was sufficiently important to merit consideration by the Court of Appeal. The issue was whether, for the purposes of section 85(5), L, as a self-employed locum pharmacist, was capable of being a person who ‘in the course of a business carried on by [her]’ sold, supplied, or had in her possession for the purposes of sale or supply, medicinal products in a package that was likely to mislead as to the nature or quality of the product in the package. L submitted that she did not fall within section 85(5)(b) because, as a self-employed locum, she had not been acting ‘in the course of a business carried on by [her]’ when the propranolol had been dispensed to C. The Crown submitted that by virtue of section 132(1), the phrase ‘business’ included a professional practice and that L therefore came within section 85(5)(b) by virtue of her professional status as a pharmacist.

Held: (1) L was not capable of being a person carrying on a business within the meaning of section 85(5). The business was being carried on by Tesco Pharmacy. The purpose of the words ‘in the course of a business carried on by [her]’ in section 85(5) could be gleaned from section 52 of the act, which laid down a basic prohibition on a person selling, or exposing for sale, or offering for sale medicinal goods that were not on the general sale list, ‘in the course of a business carried on by him’. Section 52 was aimed at the person carrying on the business and, equally, section 85(5) was aimed at ensuring that the person carrying on the business would label medicinal goods correctly. The question was whose business was being carried on at the relevant time, and it was Tesco’s business rather than L’s. Section 106(2) of the act, like section 52(1)(c), clearly drew a distinction between that which was done by the person engaged by the employer, and the business carried on by the employer. That section contemplated that, without an order being made thereunder, the business being carried on was the business of the employer and not that of the employee. It followed that in the absence of an order under section 106(2), the proper construction of section 85(5) was that the person who was carrying on the business for the purpose of that section was the employer and not the employee. L was not caught by section 85(5) simply by virtue of her professional status. The extension of the meaning of the word ‘business’ in section 132(1) was to prevent a professional person who carried on the business of a pharmacy from saying that he was in a professional practice and was therefore not in business. (2) A conviction on the section 64(1) and 67(1) offence would be substituted for the conviction on the section 85(5)(b) and 91(1) offence. What had occurred was a dreadful error and an isolated act of negligence. L, who was otherwise of impeccable character, had felt compelled to resign her membership of the Pharmaceutical Society of Great Britain and would never again practise as a pharmacist. The offence did not pass the custody threshold and there was no place for a community order. The proper penalty was a fine of £300.

Appeal allowed.

Orlando Pownall QC for the appellant; John Price QC for the Crown.