2021-03-10 18:47:50
There have been no recent manslaughter prosecutions of pharmacists, but the recent case of R v Rebelo ([2021] EWCA Crim 306) sheds light on the legal position if a patient overdoses on a drug of abuse sold in a pharmacy.
Bernard Rebelo ran an online business which sold a chemical, Dinitrophenol (“DNP”), as a food supplement to promote weight loss. DNP is used in the manufacture of dyes, wood preservatives, explosives, and insecticides, amongst other things. It can act as a ‘fat burning’ and weight reducing drug by blocking the normal processes by which energy is stored in the body, causing energy to be released as heat. It is not licensed as a medicinal product. Ingestion can be hazardous, with serious toxic effects that include kidney failure, liver failure and cardiac arrest. Fatalities have been reported in the UK from the ingestion of DNP.
A 21-year-old student, Eloise Parry, purchased a quantity of DNP capsules online from Mr Rebelo. Ms Parry had eating disorders. She consumed eight tablets at one time (described as “a massive overdose”) and died. Mr Rebelo was prosecuted for gross negligence manslaughter (and other offences). Mr Rebelo’s defence was that Ms Parry’s decision to take eight tablets at once was a free, informed and deliberate act that broke the chain of causation after the sale of DNP and that her actions “eclipsed” any negligence by Mr Rebelo.
The Court of Appeal had ruled on an earlier occasion that in determining whether a breach of duty by the defendant was a substantial and operative cause of death, the jury had to be satisfied that the victim had made “a fully free, voluntary and informed decision to risk death by taking the quantity of drug that she ingested”. The victim’s mental capacity was a factor, but it was not the only one.
Mr Rebelo argued that the sale of DNP was simply meeting customer demand; he may have been negligent but not grossly so. Those who purchased DNP knew what they were buying; numerous people took DNP without any adverse effect. The evidence was that Ms Parry was aware of the risks of taking DNP.
The trial judge invited the jury to consider whether Ms Parry was acting under any compulsion, whether caused by her mental health problems or any psychological addiction she may have had to DNP, and whether her ability to resist feeling compelled to take the DNP was impaired.
The jury found Mr Rebelo guilty of gross negligence manslaughter and he was given a 7-year prison sentence. The Court of Appeal dismissed his appeal.