Doctors stripped of dispensing rights By Francois Rank and Mariette le Roux THOUSANDS of doctors have been stripped of their powers to issue drugs after a judge dismissed a constitutional challenge yesterday to regulations obliging them to acquire special dispensing licences. The regulations came into effect at midnight last night. Dr Mphata Mabasa, one of the applicants, said outside the Pretoria High Court that fewer than 2 000 of an estimated 8 000 dispensing doctors in the country had the required licence. “We have a crisis here,” he said. Health department deputy director-general Kamy Chetty could not confirm the number of licences issued but said it was “not high”. Consistent with responses elsewhere in the country, doctors in the Eastern Cape reacted to the court ruling with surprise and anger. Eastern Cape Independent Practitioners Association (ECIPA) chief executive Jeff Govender said: “The reaction is one of disbelief. The implications to the health care of patients is of great concern.” Yesterday’s judgment means that doctors without licences will have to stop dispensing medicine from today, or break the law. Until they have completed the required course and obtained their licences, these doctors would be limited to writing out prescriptions, Chetty said. Mabasa said an appeal against the court’s judgment was being considered. “We will talk to our legal advisers today, study the judgment, and make a decision by the end of the weekend as to whether an appeal would be a viable option.” The association has 96 members and its managed healthcare scheme, which allows for some 10 000 beneficiaries to receive complete medical care, including treatment and medication, at a set annual premium, will be negatively affected. “There are major cost implications. The whole system will now cost more for patients,” said Govender. He said patients who received medication from doctors at cost price would now have to pay a higher price for the same medication at pharmacies. Border Independent Practitioners Association manager John Jansen said doctors in the province remained unsure about their rights. “Doctors in the Eastern Cape who have applied for their dispensing licences have not received them yet. “We are waiting for a decision from our governing body, the South African Managed Care Co-operation, which represents about 3 500 nationally.” This decision is only expected on Monday. “My advice to doctors without licences is to stop dispensing medication to medical aid patients,” Jansen said. Jansen also said that the Board of Health Funders, which provides information about private practitioners to medical aid companies, had also made a decision which would impact negatively on doctors. “They sent out a memo saying that as of today doctors without licences will not dispense medicines and have also advised medical aids not to pay doctors who dispense medication without a licence.” Pretoria-based National Convention of Dispensing committee member Lex Visser said the convention was disappointed by the judgment. “This is of massive concern from the point of view that many patients have been receiving anti-retrovirals as a package deal from doctors. Now this avenue is closed to them as well.” “Right now it is difficult to say whether we will be appealing or not and on what grounds. But we are considering it.” Acting judge Johann Kruger rejected with costs the application by Mabasa, the Affordable Medicines Trust and the National Convention on Dispensing, that the regulations infringed on their constitutional rights and those of their patients. He also dismissed arguments that Health Minister Manto Tshabalala-Msimang exceeded her powers in passing the regulations and that the new licensing provisions were excessive and not necessary to achieve the government’s objective of making safe medicines more accessible. The applicants disputed the validity of the regulations as undemocratic, arbitrary and draconian, arguing doctors had a historic and inherent right to dispense medicine. Doctors were particularly concerned that a licence would be coupled to particular premises. The judge dismissed the objections raised, saying it was not for a court to apply value judgments to government policy. The formulation of such policy was subject to public scrutiny and the end product susceptible to public assessment. Government officials may be held responsible for their policies by the public. “Accountability, in this sense, forms part of the political process and it is not for the courts to interfere with policy matters under the guise of accountability,” Kruger said. Assuming that medical practitioners had a right to dispense medicines, it did not follow that the provisions limited this right to the extent of infringing on any constitutional rights. “In my view, the impugned provisions do no more than regulate the practice of dispensing and do not infringe the medical practitioner’s rights to choose to practise as a medical practitioner or to choose to dispense medicines as part of his or her practice.” The judge dismissed an argument that the regulations infringed on a patient’s right to choose a particular practitioner. The fact that some patients may suffer inconveniences did not mean their constitutional rights were impaired. “Indeed, to hold thus would be far-fetched and would be to extend the boundaries of patients’ rights to an unrealistic Utopia,” the judge ruled. The health department described the ruling as a victory for the government’s efforts to transform health services and ensure patient safety. “It is a victory for patients and the general public that deserve quality health services,” it said, while urging patients to check whether their doctor was licensed to dispense before accepting medication. “We also appeal to doctors to complete the dispensing course. The department commits itself to processing applications expeditiously.” weekend post 1th January 2009
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