Friday’s Constitutional Court judgement on medicine-pricing regulations should be interpreted as a victory for the Department of Health and citizens, Minister of Health Manto Tshabalala-Msimang said.
”The judgement cannot be interpreted to say the department was wrong,” she told reporters in Pretoria. ”In fact, it says the department and ministry were correct in trying to bring prices down so they are accessible and affordable.”
The court, she said, merely identified ”a few minor defects” in the regulations — which have to be corrected in 60 days.
The ruling is a victory for the right of the public to access affordable medicine, Tshabalala-Msimang added.
She said the judgement settles prolonged uncertainty about the status of the regulations and the right of the government to regulate medicine prices.
”The Constitutional Court reiterated the fact that the government has a right to set health policy and adopt measures aimed at making medicine affordable and more accessible.”
The court acknowledged, the minister added, that the new pricing scheme had the effect of reducing medicine prices.
According to departmental official Dr Anban Pillay, the regulations have brought prices down by between 15% and 35%. He also dismissed claims that the regulations have caused pharmacies to close down for lack of profit.
Dispensing fee to be reconsidered
The section or the regulations relating to the single exit price (manufacturer’s price) and the logistic fee remain basically unchanged.
On the dispensing fee, the court ruled the Medicine Pricing Committee (MCC) must reconsider the cap of 26% or R26 imposed by the regulations. It ordered the committee to take into consideration the input of all interested parties in determining an appropriate fee.
The ruling has left a void in that it gave no direction as to what dispensing fee should be charged in the interim, except to say that this should not be excessive.
Excessive charging will be regarded as misconduct under the Pharmacy Act, although the department was unable to specify how this will be measured.
The department said it will do its utmost to have the new dispensing fee in place within 60 days, but understands the court judgement to grant some leeway on this point.
The court ruling could be interpreted to mean that the new fee should ideally be published with the corrected regulations within the specified timeframe, but allows for some delay if this proves impossible, said departmental legal services head Debbie Pearmaine.
”It will all depend on how the other parties will cooperate,” said MCC official Humphrey Zokufa. ”I am not so sure to what extent the other parties will cooperate.”
‘Struggle’ for information
Tshabalala-Msimang said the committee and department have been ”struggling” for more than two years to get information from pharmacists required in determining an appropriate dispensing fee.
”The department has always been committed to setting a dispensing fee that meets its objective of making medicines more affordable, but also ensures that the country maintains a viable retail pharmacy industry,” she said.
”Unfortunately this has been hampered by the retail sector’s resistance to provide the necessary information on their operational costs that would assist the department in arriving at an appropriate dispensing fee.”
She urged the public to report pharmacists charging high fees pending the finalisation of the regulations. — Sapa