Ruling: ‘a person served by a pharmacist is not a patient but a customer’

doctor makes "stop" gesture with hand - ama

Is a pharmacist a provider of health services? One tribunal has had its say 

According to a recent legal ruling, one particular pharmacy at least may not be primarily a health care destination and its pharmacists may not necessarily be providers of health services.  

One part of a case relating to the development of a new medical centre and its ancillary pharmacy involved the number of car parking spaces that were allocated to medical professionals.

One of the conditions under dispute in the case, Mahwendepi Pty Ltd vs Moorabool Shire Council, was the stipulation in the centre’s permit that: “A maximum of six (6) medical practitioners can operate on the site at any one time and this number cannot be increased unless the required additional car parking is provided on the site for all additional medical practitioners to the satisfaction of the responsible authority”.

The Council had calculated the car parking requirement to be 26 car spaces, comprising 23 spaces for the medical centre and three spaces for the pharmacy. As 21 spaces were provided, the Council calculated a shortfall of five spaces.

The Council sought to restrict the maximum number of practitioners to six, rather than the seven sought by the applicant, according to the background presented to the Victorian Civil and Administrative Tribunal.

In his ruling, Tribunal Member Bill Sibonis stated that the “Council’s calculation is incorrect” as “the pharmacy is not a separate use. It forms part of the medical centre. Pursuant to clause 64, as the pharmacy is ancillary to the medical centre, it does need to comply with the Planning Scheme. The relevant car parking requirement is that applying to a medical centre, and this is based on the number of persons providing health services.

“On the question of whether the pharmacist is a person providing health services, within the particular facts and circumstances of this case, I am persuaded that they are not,” he found.

“Unlike professionals such as GP, physiotherapist, and dentist, the pharmacist doesn’t diagnose and treat people’s health conditions.

“A person served by a pharmacist is not a patient but a customer.

“As concluded by the Tribunal in Eskarous, the provision of advice is a small component of the overall operation of the pharmacy. It will be a routine activity that is part and parcel of the overall operation of the pharmacy, and not of such a scale that it could be reasonably likened to the health services provided by practitioners of the medical centre”.

“I will amend Condition No. 3 to limit the maximum number of practitioners on the site at any one time to seven.”

He also ruled that the plans should be amended to change the word “pharmacy” to “dispensary”.

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  1. Greg Kyle

    This decision is absolute rubbish and demeans the profession. How can a pharmacist allow themselves to be demeaned in this way unless they have sold out to the dollar over their professionalism. This is not just about one “dispensary” in one location – this decision will have huge flow-on ramifications.
    I hope our professional bodies will take issue with this devaluation of pharmacists as health care professionals and stand up for the profession to get this classification of pharmacists overturned!!
    A pharmacist IS a health practitioner who does “diagnose and treat” health conditions – for any pharmacist to provide opinions to the contrary is selling out the profession, and in my opinion, should be run out of the profession.
    Pharmacists have worked long and hard to build recognition as health professionals in their own right – this single decision (just to reduce the number of parking spaces needed!!) has the potential to set the entire profession back decades. This should be a rallying call to all pharmacists who value their profession and careers.

    • cathy beckhouse

      I couldn’t agree more Greg!

    • Karalyn Huxhagen

      absolutely Greg. This is completely wrong on so many counts.

    • Jenny Gowan

      Well written Greg! This issue needs to be taken up further

    • tieno on

      If pharmacists are going to be defined by the number of parking spaces, then when it comes to victim’s compensation (medical negligence/damages etc..) due to dispensing errors, I wonder if the judge is going to view it like a trip-up/fall in a supermarket; and apply a lesser sentence? Instead of criminal negligence to the full extent of “professional” liability?

  2. pagophilus

    Until pharmacists stop being shopkeepers (and specifically discount-store shopkeepers) the people they serve will always be customers.
    Would you like CoQ10 with that?

  3. Ron Batagol

    Re: comments in the ruling, as reported stating “On the question of whether the pharmacist is a person providing health services, within the particular facts and circumstances of this case, I am persuaded that they are not.”

    Now, I have no knowledge as to how the definition of a pharmacist’s role affects the entitlement to car spaces in a commercial situation such as this, and please correct me if I’m wrong, but one can presume that it is not within the capacity of a State-based tribunal to re-interpret the legal definition in a Commonwealth Act of Parliament, as to what a pharmacist is or does, and then utilise that interpretation in a way that ends up contradicting the statutory definition of pharmacists and their roles within the health system in Australia!

    To briefly summarise what we already know, namely the legal definitions of pharmacists and their roles in health services, as defined under The Health Practitioner Regulation National Regulation. National Law Act 2009:

    At Part 1 Preliminary 5 Definitions, it states:

    “In this Law—

    health profession means the following professions, and includes a recognised specialty in any of the following professions—

    ( and it lists under (K)- pharmacy);

    Also “health service includes the following services, whether provided as public or private services”—

    ( and it lists under (d)-pharmaceutical services):

    Also, “health service provider means a person who provides a health service.”

    Quite precise legally and seemingly unambiguous and not open to re-interpretation, I would have thought!

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