The Supreme Court of Appeal (SCA) has dismissed, with costs, an appeal by a doctor’s organisation, the IPA Foundation, aimed at stopping specially trained pharmacists from treating people with HIV and TB, writes Tania Broughton for GroundUp.
The IPA first took its dispute with the South African Pharmacy Council (SAPC) to the Gauteng High Court (Pretoria). In 2023, Judge Elmarie van der Schyff ruled in favour of the pharmacists, giving a judicial go-ahead for the council to introduce its Pharmacy-Initiated Management of Antiretroviral Treatment (PIMART) initiative.
However, the IPA Foundation, determined to have the initiative set aside, took this ruling on appeal to the SCA – where last week five judges ruled against it. This came nearly 11 months after the case was heard, far more than the three months that judicial norms provide for when a judgment is reserved.
Justice Tati Makgoka, writing for the court, said the initiative was created in response to a persistent rise in new HIV infection rates.
The SAPC, at the department’s request, deemed PIMART suitable for addressing this issue.
“As the High Court correctly found, the SAPC evaluated the risks associated with pharmacists initiating first-line ART and TPT (TB preventive therapy) as well as providing medicines for PrEP and PEP, considering the risks when deciding to approve the PIMART training.
“The uncontested evidence … demonstrates that the approved accreditation process for PIMART was rigorous and thorough,” Makgoka said.
In her previous judgment, Van Der Schyff had noted that a pilot project had emphasised the value of the initiative, which was in line with the World Health Organisation’s vision to promote widely accessible primary healthcare.
“The untapped value of pharmacists in fighting HIV was also emphasised by the efficient role pharmacies played in meeting healthcare needs and providing healthcare services during the Covid-19 pandemic,” she said.
“The need to widen access to first line ART and TPT therapy on a community level is not a figment of SAPC’s imagination but a dire need that is also evinced in other countries.”
The IPA Foundation had approached the Pretoria court, under the Promotion of Administrative Justice Act (PAJA), seeking to review and set aside the SAPC’s decision to implement PIMART.
IPA claimed the SAPC had failed to give interested parties an adequate opportunity to comment before the initiative was implemented. It said PIMART unjustifiably encroached on the domain of medical practitioners and was in conflict with legislation.
On appeal, the IPA persisted with these arguments.
Dealing with the background, Makgoka said the SAPC had published a notice in the Government Gazette in March 2021 regarding the proposed adoption of PIMART, giving interested parties 60 days to comment. This resulted in government approval later that year.
It was only after this that the IPA submitted its comments and objections.
After engagements, the IPA lodged the review application in the High Court.
On the issue that the IPA and its members claimed they did not have sufficient notice of PIMART, because it was advertised in the Gazette during the pandemic, Makgoka said there was no suggestion that the pandemic had “paralysed the administrative functions” of the IPA.
Remarkably, the judge said, the IPA had not suggested that the notice did not come to its attention, finding that adequate notice had been given. Makgoka said several other organisations had submitted comments during the prescribed period.
He said the IPA had also not challenged the validity of the Pharmacy Act, which specified publication in the Gazette and in the absence of that, it was not open for it to say the publication was inadequate.
Makgoka said the IPA had introduced the issue of “rationality” only in its notice of appeal. However, the court had dealt with this because there was no prejudice to the SAPC.
He said PIMART was a crucial intervention in the public interest, which had been devised by medical experts.
“Through PIMART, the SAPC aimed to improve access to healthcare. Contrary to the IPA’s contentions, PIMART is an essential intervention in the fight against HIV/Aids. Its introduction constitutes a rational legislative and practical measure with the competence of the SAPC as an organ … in enhancing access to healthcare for HIV treatment, in fulfilment of the state’s obligation under the Constitution,” Makgoka said.
“These are legitimate and compelling public interests.”
He said the IPA was wrong in believing that PIMART was a blanket licence for pharmacists to treat HIV patients.
“Its scope is limited and applies only to accredited pharmacists. It will not alter the scope of practice for medical practitioners. The fact is that medical practitioners do not have the exclusive rights to care for people with HIV/Aids. This is a collaborative effort involving various health professionals.”
The IPA had also submitted that pharmacists were not authorised to prescribe schedule 3, 4 and 5 medicines without a prescription.
However, the judge said, the Medicines Act carved out an exception to this with authorisation of the Director-General. It was through this that PIMART-accredited pharmacists could apply for permits to prescribe schedule 3 – 5 substances.
The appeal was dismissed with costs.
Certainly not all doctors oppose the idea of pharmacists initiating patients with HIV on treatment: the South African HIV Clinicians Society stated: “We look forward to supporting the rollout of PIMART, which will further contribute to South Africa’s HIV response and progress towards the 2030 target of eliminating HIV as a public health concern.”
And the South African Pharmacy Council (SAPC) said it hopes that from November, pharmacists who have already completed supplementary training, will be able to apply for permits to provide the HIV meds, reports the Cape Times.
“This initiative bridges critical gaps in care and supports the country’s National Strategic Plan (NSP) 2023– 2028 for HIV, TB, and STIs,” said the council’s Dr Sham Moodley, who added that there were already more than 1 000 healthcare professionals working within the pharmacy framework who had completed the training.
“So the obstacle had been that they needed to be issued with the permit to utilise those schedule 4 drugs. That needs to go back to the DG to be signed off so that process can continue in pharmacy. Then the second part is to expand that training programme to include more trained pharmacists and their staff in the programme so we can expand the services countrywide.
“What we hope is that with Universal Health Coverage – the movement towards NHI – this could be the first part of a module we could generate, as we did with Covid vaccines where we utilise the state stock and administer to the patients.”
The SACP said everyone in the profession would be updated on the next steps of the process to apply for permits and access PIMART training.
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See more from MedicalBrief archives:
Pharmacy ARV treatment will erode GPs’ income – HPCSA
Top HIV experts call for PrEP to be prescribed by all nurses and midwives
Doctors challenge law allowing pharmacists to give HIV meds without scripts