Regulations obliging doctors to acquire special licences to dispense medicine were likened in the Pretoria High Court on Monday to apartheid-era laws barring black people from certain areas and certain jobs.
As those laws did to blacks, the regulations infringed on doctors’ right to dignity, freedom of movement and of practising their professions freely, Hans Fabricius, SC, argued on behalf of more than 11 000 medical practitioners.
Doctors are contesting the regulations as undemocratic, arbitrary and draconian.
They argued that Health Minister Manto Tshabalala-Msimang acted beyond her powers when she promulgated the regulations.
A number of the regulations were not provided for in legislation — including one coupling the issuing of a dispensing licence to licenced premises, Fabricius said. This apparently related to issues of competition arising from the proximity of a dispensing doctor’s practice to an existing pharmacy.
”Regulations cannot override or be in conflict with an Act of Parliament,” Fabricius told the court.
Such geographical restrictions, he added, grossly infringed on the rights of patients as it hampered their access to health care. In addition, doctors were not allowed to give input on this specific provision.
Doctors are represented in the court application by the Affordable Medicines Trust, the National Convention on Dispensing, and practitioner Dr Mphata Norman Mabasa.
They are seeking a court order that the regulations are unconstitutional.
The application is contested by nine respondents, including the minister and director-general of health, the speaker of Parliament, the president of the country, the Medicines Control Council of SA and the SA Pharmacy Council.
Under the new regulations, Fabricius said, the issuing of a dispensing licence was subject to an arbitrary exercise of power.
In the past, a doctor’s name merely had to be entered onto a register.
For the respondents, Marumo Moerane, SC, asked the court to scrap numerous sections of the applicants’ founding and responding papers, as well as several supporting affidavits.
He contended many of the statements were scandalous, vexatious and defamatory — including one accusing the government of accepting all licence applications for the duration of the trial in a bid to negate the doctors’ case.
Other statements amounted to hearsay and were inadmissible, and some of the affidavits were improperly submitted, Moerane said.
He also accused the applicants of changing their case mid-stream by dropping some of the initial relief sought. At the close of his argument, Fabricius asked acting judge Johann Kruger to make an interim ruling while he pondered his judgement. The deadline for doctors to obtain dispensing licences expires on Wednesday.
Kruger said he would take this into account, and asked the two parties to try to reach an agreement in this regard.
According to documents filed by the government, some 5 000 doctors have applied to write the supplementary examination required for them to get a dispensing licence. Moerane is to continue his argument on Tuesday. – Sapa