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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