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HEALTH CARE PROFESSIONALS - Government of - Regulatory colleges or governing councils - Powers - Scope of practice - Prohibited practices - Particular professions - Pharmacists

Thursday, October 05, 2017 @ 8:39 AM  

Lexis Advance® Quicklaw®
Appeal by Alberta College of Pharmacists (College) from two court decisions which determined the applicable standard of review for a College policy (Standard of Review Decision) and declared that the policy was ultra vires the College under the Health Professions Act (Merits Decision). The policy under review was the College’s Prohibitions Against Inducements to Customers For the Purchase of Pharmaceutical Drugs (policy). The policy was challenged by the owners of the Safeway and Sobeys grocery store chains. These chains offered their customers benefits such as Air Miles with their store purchases, including pharmacy purchases. The owners had never received complaints about the benefits offered causing any patient care or safety issues, or interfering with pharmacists’ ability to provide advice and patient care to customers. They applied for judicial review of the policy. In the Standard of Review Decision, the reviewing judge determined that the correctness standard applied, concluding that the College did not possess any greater institutional competence or expertise than the reviewing court in delineating its jurisdiction and that the nature of the question, whether the policy was ultra vires the College under the Health Professions Act (Act), suggested correctness. In the Merits Decision, the Court found that the policy amounted to controlling the way commercial entities (pharmacies) operated and competed against one another in terms of prices offered to consumers and costs incurred by the affected patient consumers. The Court found that the Policy had a clear and direct economic function even though the Act made it abundantly clear that it was not to deal with economic issues relating to controlling costs. The Court also concluded that the policy did nothing to protect against incompetent or unethical pharmacists and did not add flexibility to their role such that the health system operated with maximum effectiveness. The Court further found that the policy indirectly restricted commercial competition by directly prohibiting professional pharmacists from providing inducement to patient customers.

HELD: Appeals allowed. The reviewing judge erred in applying the correctness standard. Reasonableness was the proper standard of review. On this standard, the policy was intra vires the College. The College was authorized under the Act to adopt a code of ethics and standards for its regulated members, including the regulation of activities like inducements associated with the dispensing and sale of drugs and the provision of professional services. The policy conformed to the rationale of the Act and was not irrelevant, extraneous or completely unrelated to its purpose. The judge never asked the question of whether the policy was one no reasonable body could have taken. The policy was reasonable in light of the broad public interest mandate and broad regulatory powers given to the College.

Sobeys West Inc. v. Alberta College of Pharmacists, [2017] A.J. No. 976, Alberta Court of Appeal, R.L. Berger, J.D.B. McDonald and J. Strekaf JJ.A., September 22, 2017. Digest No. TLD-Oct22017009