IPAF contends that the SAPC failed to provide interested parties with adequate opportunity to give comments or make representations before PIMART was implemented and that by adopting PIMART the SAPC irrationally extended the scope of pharmacy practice to encroach on the domain of medical practitioners.
APPLICATION OF THE LAW
Dismissing the case with costs, Dr Elmarie van Der Schyff, who judged the matter said in her ruling: “It is common cause that by publishing the Board Notice 17 of 2021, that SAPC followed the statutory prescript of section 49 of the Pharmacy Act. To comment on PIMART requires specified profession related knowledge and it would serve no purpose to require publication in general newspapers. The Board Notice adequately explained the nature and extent of PIMART, and sufficient notice was given for comment. There was no whimsical or clandestine reason for the timing of the publication during the Covid pandemic. Accordingly, the administrative action was procedurally fair.
“It is trite that a competent authority taking administrative action must be authorised to do so. An administrative action will be invalid if there is no authorisation for the action. SAPC only has the powers conferred on it through applicable statutes. There must be a rational connection between the information before SAPC and the decision taken, and it must be rationally connected to the purpose for which the decision is taken. The legal framework set out above determines the scope of SAPC’s powers and the framework clearly allows for an exception for the prescribing of medication via the obtaining of a Section 22A(15) permit.
“The development and implementation of PIMART, does not expand the existing scope of practice of pharmacists that generally provide PIT and PCDT. It introduced a specialist category of PIT and PCDT focused on preventing and treating HIV. Accordingly, the decision to implement PIMART fell within the ambit of SAPC’s power. SAPC’s decision is rational, and the decision did not take irrelevant considerations into account. SAPC considered the risks associated with pharmacists initiating first-line ART, and TPT, and providing PEP and PrEP, and had regard to those risks when considering whether to approve the PIMART training course.
“Furthermore, there is no basis to find that the SAPC decision was taken for an ulterior purpose or motive. SAPC applied its mind to considering the development and implementation of PIMART. The decision to utilise PIT as a vehicle for PIMART and to enable adequately trained pharmacists to provide PIMART services is a decision that is rationally connected to the purpose for which it was taken. It is a decision that is rationally connected to SAPC’s objection to assist in the promotion of the health of the population of the Republic.”
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