The Constitutional Court reserved judgement on Wednesday on the Department of Health’s application relating to disputed medicine-pricing regulations, without ruling immediately on which regulations are currently in force.
The department had asked the court for leave to appeal a Supreme Court of Appeal (SCA) ruling that declared its new regulations invalid, on the grounds that the SCA did not have the jurisdiction to hear the case in the first place.
This was because the Cape High Court was yet to rule on an application by pharmacists for leave to appeal its decision that the regulations should remain.
It also asked the court to declare which law is currently in place due to the lack of clear guidance on which law applies when an appeal is made to the Constitutional Court.
Earlier, counsel for the pharmacists told the court that the current dispensing fees will drive pharmacists out of their profession and limit constitutional rights to access to health care and affordable medicine.
”They simply cannot live under the dispensing fee as it stands,” said advocate Wim Trengove.
Even courier pharmacies who deliver chronic medicine directly to patients cannot charge extra.
The Department of Health’s instructions that pharmacies may charge extra for additional services were wrong, as the relevant Act says that a pharmacist may only sell at the single exit price plus the dispensing fee, he argued.
”It would have been impermissible to add on other fees,” Trengove said.
If pharmacists could charge for extras, then ”we submit that the regulations are completely void for vagueness”.
He said the current regulations have taken a ”one size fits all” approach and have not tried to set fees that are appropriate and recognise different services and functions.
It was also not right for the Department of Health to say that pharmacies must alter their business model to suit the law.
There was also no definition of the word ”dispense” in the regulations and no definition of which services fall under the dispensing fee.
He acknowledged that dispensing functions have changed from the old days of pharmacists mixing powders but they still compound some medicines, which could take up to three hours at a time.
If pharmacists are driven from their profession, it will restrict the access the public have to their products and will impede access to health care, which the government is trying to advocate.
Pharmacists are not against setting a dispensing fee, but want an appropriate fee that allows efficient pharmacies to make a living.
This also comes with the rider that even a few inefficient pharmacies should be allowed to survive to ensure that everyone has access to medicine.
Only ”mega pharmacies” such as New Clicks and Pick ‘n Pay can survive under the new laws.
Trengove asked the court to rule only on the issue of the SCA’s jurisdiction and not the merits of the regulations because the department had refused to make submissions to the SCA when it had the chance.
Earlier, advocate Jeremy Gauntlett told the court that pharmacists were prejudiced by not getting a chance to make oral submissions to the department’s medicine-pricing committee.
In closing, Moerane said that the dispensing fee was based on a study of mark-ups that pharmacists used before the introduction of the regulations. — Sapa