Opening hours key to pharmacy approval case

The Federal Court has ruled that an appeal should be allowed in this ongoing stoush between two NSW South Coast pharmacies, which are just 150 metres away from each other

A pharmacy’s appeal has been upheld in the Federal Court, with debate over its application for approval sent back to the primary judge for review.

On 30 March 2017, Vincentia MC Pharmacy applied for approval to supply pharmaceutical benefits from premises at the Vincentia Medical Centre on the South Coast of NSW. The medical centre is located around 150 metres from another pharmacy, Choice Pharmacy Vincentia, which has been there since December 2015.

The Australian Community Pharmacy Authority was satisfied that each of the requirements for proposed premises were met and recommended that MC Pharmacy’s application be approved.

MC Pharmacy commenced operating at the premises on 1 November 2017 and supplying pharmaceutical benefits on 4 December 2017 following approval by the Secretary of the Department of Health on the same day.

Earlier this year, Choice Pharmacy brought the case against Vincentia MC Pharmacy, seeking judicial review of the Authority’s decision and orders quashing both the Authority’s recommendation and the Secretary’s approval.

Under Item 136 of the 2011 Rules, a “large medical centre” is defined as one that operates for at least 70 hours each week, and has one or more prescribing medical practitioners for at least 70 hours each week.

Choice Pharmacy contended that the medical centre in question did not in fact operate for 70 hours each week.

MC Pharmacy conceded that the rosters in evidence before the Authority established that the medical centre was not open on public holidays between 30 January 2017 and the first week of June 2017, including Easter and Anzac Day. As such, MC Pharmacy conceded that in the weeks on which those public holidays fell, fewer than 70 hours were worked at the medical centre.

Earlier this year, a Federal Court judge found that the Explanatory Statements to the 2009 and 2011 Rules revealed features indicating that “at least 70 hours each week” should be read strictly.

The Authority had failed to appreciate the significance of the evidence concerning public holidays, the primary judge said, adding that this was an error of law.

In a subsequent decision, the primary judge made final orders setting aside the recommendation and approval decisions. She remitted the application for approval to the Authority and the Secretary for further consideration according to law, with MC Pharmacy to pay Choice Pharmacy’s costs.

However the Federal Court has now upheld an appeal to that decision. Last week, two of three judges ruled that Choice Pharmacy’s submissions should be rejected on that basis that the primary judge erred in her construction of “large medical centre”.

They said the Explanatory Statement explained that item 136(6) of the 2011 Rules was intended “to ensure that, as far as is practicable, a majority of patients can access the pharmacy following a consultation by a doctor in that medical centre”.

“A pharmacy will still, generally speaking, be open for the extended hours thereby facilitating timely and convenient access to the supply of pharmaceutical benefits by patients of the medical centre attending during extended hours, even if exceptions are made for weeks in which one or more public holidays fall,” they ruled.

“The same cannot, with respect, be said of the primary judge’s construction that a medical centre is not a ‘large medical centre’ merely because it is closed for some or all public holidays declared under, or prescribed by, Commonwealth, State or Territory laws as applicable.”

By majority, the Federal Court rejected the primary judge’s construction in favour of arguments by MC Pharmacy and the Authority.

“Contrary to the primary judge’s decision, the decision of the Authority and the Secretary is not tainted by error of law,” the judges stated.

They upheld MC Pharmacy’s appeal of the decision to set aside its recommendation and approval.

Choice Pharmacy was ordered to pay MC Pharmacy’s appeal costs. The matter has now been remitted to the original judge in order to deal with the remaining grounds of judicial review.

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