Medical doctors are to seek leave to appeal against the Pretoria High Court’s dismissal of their constitutional challenge to regulations obliging them to acquire special licences to dispense medicine.
A lawyer for the National Convention on Dispensing (NCD), Gordon Hay, said on Tuesday an application for leave to appeal will be lodged with the Constitutional Court — possibly this week.
The Department of Health said it will defend the legislation. It believes provisions for dispensing licences are legitimate and in line with the Constitution.
”We are confident that despite the opposition to transformation of the health sector, we will be able to achieve the objectives of the Medicine Act — to make affordable, quality medicine available to all South Africans,” it said in a statement.
Acting Judge Johann Kruger last week dismissed with costs a challenge by the NCD, the Affordable Medicines Trust and Dr Mphata Norman Mabasa of the validity of the new government regulations.
They argued doctors have an inherent right to dispense medicine because of their qualifications.
But Kruger rejected a contention that the regulations infringe on the constitutionally protected rights of doctors and those of their patients.
He also dismissed arguments that Minister of Health Manto Tshabalala-Msimang exceeded her powers in passing the regulations, and that the new licensing provisions are excessive.
”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,” he said.
The regulations came into effect at midnight last Friday, after two earlier extensions pending the court’s judgement. This rendered thousands of doctors who have not yet obtained their licences unable to continue to dispense medicine.
The NCD said at the time that less than 2 000 of an estimated 8 000 dispensing doctors in the country had obtained the required licence.
”Hundreds of thousands of patients have been seriously inconvenienced or in certain cases left without medicine, unless doctors have decided to break the law and meet the ethical requirements of their profession,” it said in a statement on Tuesday.
”Great uncertainty surrounds the position of medical schemes in regard to the payment of medicine claims dispensed by doctors.”
The NCD said it is considering lodging another court application for the extension of the licensing deadline pending the outcome of the appeal process.
”In the meantime, the NCD once again urges its members to continue applying for their licences.”
The High Court application was 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 South Africa and the South African Pharmacy Council. — Sapa