No licence application by a dispensing doctor has been turned down, the Constitutional Court heard on Thursday.
This was in response to argument by dispensing doctors that their constitutional right to practice freely is being hampered by regulations linking the licence to where a health practitioner plans to operate.
Defending the Department of Health’s controversial new regulations enacted earlier this year, advocate Marume Moerane said the department’s director general, who issues the licences, is entitled to link applications to premises to ensure adherence to safe dispensing practices.
”We believe that it is reasonable and rational,” said Moerane, after extensive cross-examination by 10 judges.
He said doctors are limited to dispensing on premises mentioned on their licence forms, and if they move, they will have to reapply. If they intend working at more than one location, their licences must reflect this.
In terms of the regulations, to obtain a dispensing licence, health practitioners must fulfil certain conditions, which include completing a dispensing course, providing information on the community they plan to serve and placing a newspaper advertisement stating their intentions.
Moerane said turning down an application on the basis of being too close to another pharmacy is not government policy.
However, to address issues of over- and undertrading and the government’s broader aim of making medicines more accessible, the director general might take the proximity of another pharmacy into consideration.
He said overtrading could, in fact, have an adverse effect on the quality of service, prompting two judges to dispute this.
Judge Kate O’Regan said that limiting where doctors could prescribe could, in fact, diminish access to medicine, and Judge Albie Sachs said ”if anything, competition is supposed to improve quality”.
Earlier, dispensing doctors said linking a licence application with premises is being done without the necessary statutory backing and the minister of health is acting beyond her powers in allowing this.
Even a licence issued to a locum who dispenses in premises licensed to someone else is not covered by the law and should not have been issued.
They said the sections of the law that related to the licences are vague and unenforceable.
The doctors have no objection to addressing the safety issues surrounding medicine dispensing, but feel that coupling a licence to premises is unconstitutional because it does not allow them the freedom to practice their profession and to live the life they chose, as provided for in the Constitution.
The application is being brought by the Affordable Medicines Trust, which acts in the interests of medical practitioners, the National Convention on Dispensing, and medical practitioner Norman Mabasa.
They are seeking leave to appeal a decision by the Pretoria High Court relating to the constitutional validity of certain provisions of the Act.
The respondents are the minister and director general of health.
Judgement was reserved. — Sapa