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SELF-GOVERNING PROFESSIONS - Health care - Pharmacists

Thursday, January 14, 2021 @ 6:21 AM  

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Appeal by LCI from the dismissal of its application for judicial review of a Statement issued by the respondent College. The appellant promoted the sale of a weight-loss product it had developed through authorized centres, including various pharmacies. For a pharmacy to become an authorized centre permitted to sell the products associated with the Protocol, the pharmacist had to provide monitoring and consulting services to customers who followed the Protocol’s program. The College became concerned the pharmacists were practising dietetics, a field exclusively reserved for dietitians, when performing the services required of them within the Protocol. The College thus issued a Statement to remind pharmacists of their legal and ethical obligations towards the public and urged them to confine their professional activities to the areas permitted by legislation, regulation and policy. The application judge found the Statement was nothing more than a reminder or guideline and not subject to judicial review. The appellant argued the application judge erred by deciding the Statement was not a decision subject to judicial review and by failing to find the Statement was ultra vires the powers of the College with reference to ss. 22 and 49 of the Pharmacy Act on the issue of scope of practice.

HELD: Appeal dismissed. The Statement was only a guideline issued by the College to its members which purported to reflect the College’s interpretation of the existing provisions of the Pharmacy Act that dealt with the parameters of the scope of practice. Pharmacists were not permitted to engage, as part of their scope of practice under s. 49, in weight-loss monitoring. This area was reserved for the exclusive domain of dietitians. All the College’s Statement intended to, and in fact did, was to communicate to its members that no pharmacist could engage in the practice of dietetics. The appellant had no standing to bring a judicial review application. Any alleged special interest standing of LCI to challenge the Statement ran contra to the objects and purposes of the regime established by the Pharmacy Act, the overarching objective of which was the protection of the public. The effect of granting standing would be, in effect, to say that there was a connection between the statutory purpose of protecting the public and the economic interests of the appellant. If the appellant had a potential remedy, it could not arise from the public law forum of judicial review and administrative law generally and might be available in the private law forum.

Laboratories C.O.P. Inc. v. New Brunswick College of Pharmacists, [2020] N.B.J. No. 284, New Brunswick Court of Appeal, J.C.M. Richard C.J.N.B. and K.A. Quigg and C.A. LeBlond JJ.A., November 26, 2020. Digest No. TLD-January112021007