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The Risks of Medication Management Reviews (MMRs)

Paul Baker, Senior Solicitor Director, Meridian Lawyers on behalf of Guild Insurance

Recently, there has been considerable discussion about emerging business opportunities for pharmacists via the provision of various professional services which not only enhances income opportunities but provides increased scope for professional satisfaction. 

Some of these opportunities are also assisting the pharmacy profession in cementing their place in the health provider chain and one of the most popular initiatives in this area involves medication management reviews (MMRs). In the November edition of AJP, Bill Kelly, CEO for the Australian Association of Consultant Pharmacy (AACP), noted that the AACP to date has accredited more than 2300 pharmacists to conduct MMRs.

This presents a need for all accredited pharmacists to be informed about the expanded potential for legal liability exposures in the MMR process. In this article, I will address some of the key considerations for a pharmacist to assess their legal risks and obligations in relation to the MMR initiative.

Professional Obligations

In becoming involved in MMRs, the pharmacist is representing that he or she has the appropriate qualifications, skills and experience to provide advice and recommendations on drug regimes. There is clearly a reliance by the patient on such representation which gives rise to a legal duty of care being owed by the pharmacist provider to act reasonably.

A pharmacist’s duty of care is ordinarily measured by what is termed a reasonable standard of care. As a guide this can generally be measured by reference to what professional peers of good repute would deem to be an appropriate standard in such circumstances. 

The acquisition of knowledge by the pharmacist in the MMR process is critical. The nature of the MMR process requires a pharmacist to use their professional knowledge and skill to the betterment of the patient. These professional obligations, inherent of the MMR process, necessitate that a pharmacist who has reason to be concerned for the patient's wellbeing, take action to intervene. The extent of steps required to be taken by a pharmacist will be determined by the likely harm to the patient.

It is good practice again to refer to the standard of care test, and consider what a peer pharmacist of good repute and confidence would do in such circumstances. While a Court is not compelled to take such opinion into account in determining whether a legal liability will attach, it is a useful rule to follow and will generally satisfy the legal onus. It is also important that all discussions with others involved in the process are documented, and copies of notes maintained for further reference if necessary.  The maintenance of records is unfortunately often overlooked or ignored by professionals, including pharmacists and the importance of maintaining diary notes or recording steps taken or advice given is critical and cannot be overemphasised. 

If a pharmacists fails to act in circumstances where they possess knowledge that gives them reason to be concerned about the patient, then there is potential legal liability exposure. However, if a pharmacist does intervene and can demonstrate that he or she has acted reasonably, it would be more difficult to assert a liability attaching. The extent to which a pharmacist must go to satisfy legal and professional obligations will be essentially determined by the circumstances of each particular case. The more serious the potential adverse outcome, the greater the need for intervention.

Intervention Options Available

There are a number of options available to pharmacists in circumstances where a concern remains as to the patient’s wellbeing and, in the case of a referral, the prescriber has failed to act on or at the very least, investigate grievances and concerns you’ve raised.

Depending on the seriousness of the concerns and whether it is felt issues of professional judgment, or knowledge or skill or care (or lack thereof) are involved it may be necessary to proceed with one or more of the following steps:

• Suggest a third party opinion if there is a disagreement remaining between health professionals involved in the process.
• Suggest an independent opinion be obtained from a professional body such as the Therapeutics Medicines Information Centre particularly if the issue involves a medication issue (i.e. dosage, contraindication etc). Pharmacists could even access such an opinion of their own volition, and utilise this in ongoing discussions.
• Seek to have a one-on-one discussion with the patient or his or her carer / guardian and depending on the compass of that individual (i.e. whether they are of sufficient mental competence, aptitude, and understanding). Care needs to be taken in these circumstances.
• If the issue escalates and the pharmacist remains concerned, or should there be a breakdown in the professional relationship (and assuming there is a valid basis to the pharmacist's concerns) a formal complaint could be lodged with the Medical Board. This step should not be taken lightly and to proceed on this basis, there would need to be issues as to the doctor’s professional competence.

A collaborative process

As you will probably know, there are essentially two forms of MMRs. The first involves the collaborative process between prescriber and pharmacist and the second, is often termed, pharmacist initiated reviews. In the case of an MMR which entails a collaborative process, a pharmacist has additional considerations regarding the legal risks and obligations.

A pharmacist has a legal duty to action any MMR referrals in a timely manner. The pharmacist must also take into account any issues of urgency and therefore prioritise all referrals based on considerations of urgency and any particular knowledge the pharmacist may have that would predicate and expedite any particular referral.

In the case of these collaborative MMRs, a pharmacist should raise any particular issue of concern about the MMR process, directly with the prescriber during the course of discussions and in the written report. Assuming that the discussion and the determined course do not satisfy concerns of the pharmacist, the further steps outlined above may be required to be taken by the pharmacist. Again, the pharmacist cannot 'stick their head in the sand’ and ignore their personal concerns for the patient. A failure to intervene would be a contradistinction to the legal and ethical obligations of the pharmacist

As you can see there a range of potential legal risks and obligations in the MMR process for a pharmacist. As MMRs continue to play an increasingly significant role in pharmacy practice, it is important that pharmacists consider their risks and seek expert advice where appropriate.