Legal Scoop | ‘Dispensing’ drugs vs ‘supplying’ drugs

A showdown appears imminent between the Pharmaceutical Society/Pharmacy Council of Jamaica (together referred to herein as the pharmacists) and the Medical Association of Jamaica (MAJ).

Recently Legal Scoop listened to a portion of a heated exchange between representatives of the two sides on ‘Beyond the Headlines’. The host was Emily Shields, in the absence of usual host, Dionne Jackson-Miller.

The pharmacists were insisting that doctors who gave patients medicine in their offices were flouting the law by ‘dispensing’ drugs, while the representative from the MAJ was saying that it was quite lawful for doctors to ‘supply’ drugs in their offices and that the distinction being made by the pharmacists between dispensing and supplying was overblown.

In summary, the pharmacists are arguing that a doctor seeing a patient, prescribing the drugs, and then turning around and issuing the drugs did not have enough checks and balances, as the same person was playing all the roles. Bringing a pharmacist into the picture made for a more efficacious process, as the pharmacist provided that second set of eyes on drugs and dosage, gave counselling on the drug being taken, and looked at other drugs that the patient may be taking, and how this new drug could react with those.

This line of argument for checks and balances is irresistible to Legal Scoop, but does the law support them? Legal Scoop does not think the laws, as currently worded, do.

During the segment heard, the Pharmacy Act and Medical Act were both referenced for support. This column looks at the relevant provisions below.

Pharmacists’ argument: The Pharmacy Act

In the exchange on ‘Beyond the Headlines’, the pharmacists pointed to the Interpretation section of the Pharmacy Act. The section defines ‘dispensing’ as follows:

“Dispensing, in relation to a drug, means supplying that drug on and in accordance with a prescription given by a registered medical practitioner, or a registered dentist, or a registered veterinary surgeon, or veterinary practitioner.”

When doctors supply patients with drugs in their offices by writing instructions on an envelope or on a vial and give drugs to the patient, they are ‘dispensing’ drugs, and this breached the act. But does it?

Doctors’ argument: The Medical Act

Dr Clive Lai, head of the MAJ, on the other hand, relied on Section 7(4) of the Medical Act which states as follows:

(4) … every registered medical practitioner shall be entitled to practise medicine in Jamaica and to demand and recover any reasonable charges for services rendered by him as a medical practitioner and for all drugs, medicines and appliances supplied by him [emphasis added].

According to Dr Lai, this section, by saying that doctors were eligible to receive fees for drugs and medicines ‘supplied’ by them, among other things, clearly pointed to doctors being able to give drugs to patients without running afoul of the law. On the face of it, the doctors’ take on this section seems quite logical.

Nevertheless, Legal Scoop decided to take another look at the Pharmacy Act to determine this time, not if it had a definition for ‘dispensing’, but if that act went on to impose any restraints, on the ‘dispensing’ or ‘supplying’ of drugs. This, Legal Scoop believes, is the crux of the matter – whether the Pharmacy Act imposes restraints on the dispensing or supplying drugs and who those restraints were imposed on.

DISPENSING OF DRUGS

Section 18 of the Pharmacy Act is the relevant section that speaks to dispensing of drug. It provides:

18. (1) Subject to the provisions of Section 19, no person shall compound, dispense, store for sale or retail any drug unless (a) the compounding, dispensing, storing for sale or retailing, as the case may be, is effected –

(i) on premises registered as a pharmacy; and (ii) by a registered pharmacist or by a registered pharmaceutical student under the supervision of a registered pharmacist; and … .

The above section is very clear. Subject to Section 19, drugs can only be dispensed by a registered pharmacy on premises registered as a pharmacy. While the section is clear, it is also clear that one cannot get full appreciation of the section without also considering the provisions of Section 19, since Section 18 is subject (that is, dependent or conditional on section 19).

Section 19 subsection (2) provides: ...

(2) Nothing in Section 18 shall –

(a) apply to a drug which is supplied –

(i) by a registered medical practitioner or by a registered nurse or midwife on the direction of a registered medical practitioner, for the purposes of medical treatment; or

(ii) by a registered dentist for the purposes of dental treatment; or … .

Alas, Section 19 is clearly saying that nothing in Section 18 applies to drugs ‘supplied’ by a registered medical practitioner. The use of the word, ‘supplied’, in Section 19, as distinct from the words, ‘supplied on a prescription’, or as distinct from the word ‘dispensed’, may be the problem. Some pharmacists may be of the view that the use of the word ‘supplied’ in Section 19 means the ‘supplying’ of drugs is allowed, but not the ‘supplying’ of drugs on a prescription (which is how ‘dispensing’ is defined). However, in the view of this column, that distinction is superfluous and the natural ordinary meaning of the word ‘supply’ should be utilised. According to the Oxford online dictionary, the word ‘supply’ means:

Make (something needed or wanted) available to someone; provide, … .

Therefore, Section 19, in our view, must be read as saying that registered medical practitioners who provide patients with drugs/make drugs available to patients are exempted from the provisions of Section 18.

While this column agrees with the views of the doctors that their supplying of drugs in their office neither breaches the Medical Act nor the Pharmacy Act, the pharmacists’ argument for checks and balances does resonate with us. Nevertheless, pontification will not do the trick. In the absence of more in-depth research by more learned counsel, the legislative deck, set as it is at the moment, appears stacked against the pharmacists. What is required, in our view, is legislative amendment. As such, the pharmacists should use their energy to lobby parliament for that which they seek.

- Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Email feedback to columns@gleanerjm.com and shena.stubbs@gleanerjm.com, or tweet @shenastubbs.