Court upholds doctors' right to dispense Ivermectin

 

The Court of Appeal today upheld the right and autonomy of doctors to dispense Ivermectin or any other medicine to treat patients, even if it goes against Health Ministry prohibition.

A three-person appellate bench - chaired by Abdul Karim Abdul Jalil and comprised of member judges Abu Bakar Jais and Collin Lawrence Sequerah - allowed an appeal by the Malaysian Association for the Advancement of Functional and Interdisciplinary Medicine (MAAFIM) over the right of doctors to prescribe Ivermectin to Covid-19 patients.

According to a Facebook post by the group’s counsel Abraham Au, the bench ruled that a medical practitioner is entitled to dispense Ivermectin as an ingredient to his or her patient per the Poisons Act 1952 read together with the Poison Regulations 1952.

The lawyer said the bench also ruled in the affirmative over whether a registered medical practitioner can dispense such medicine to patients for medical treatment purposes per the same laws.

“The significance of the decision of the Court of Appeal today is not merely limited to the dispensation of Ivermectin, but extends across the board on the important subject of the autonomy and right of doctors to legally and legitimately dispense a Group B Poison, if, in their professional judgment, it could be beneficial for the treatment of their patients,” Au said.

The lawyer explained that the effect of the court’s decision underscores the following realities:

• The dispensing of any drug should be by medical professionals, or else it could wreak havoc on a person’s health if dispensed by others or by self-dispensing.

• Ivermectin is being consumed by humans as it is authorised and has been dispensed for trials for humans as well as by doctors for off-label use in public hospitals.

• It would be unreasonable to expect doctors to track the provenance of the large number of drugs in Group B (the list can be added and amended from time to time) for their use for their patients. Hence, the exception provided to registered medical practitioners in Poisons Act 1952.

“It goes without saying that doctors as professional medical practitioners are obliged to abide by their professional code of conduct, the Hippocratic Oath, and Article 37 of the Helsinki Declaration.

“This includes the dispensation of medicines if such dispensation, in their professional judgment, could be beneficial for the treatment of their patients,” Au said.

“This has always been the case in Malaysia since the advent of the Poisons Act 1952 (“Poisons” in this context means drugs).

“A close perusal of the purpose and intent of the Poisons Act 1952 accentuates a distinct treatment of governmental controls on the dispensation of drugs between doctors/registered medical practitioners and drug retailers.

“While the sale of drugs and other forms of medicine is heavily regulated by the government, Parliament has seen it fit to acknowledge the need to confer discretionary powers on registered professional medical practitioners to supply particularly Group B poisons for the purpose of treatment (Sections 18 and 19 of the act) and for purposes of sale by retail (Section 21 of the act) – the only caveat being if it is to be sold by retail, then there is the need to comply with the requirements as to record as per Section 21(2) (of the act) as to the form of prescription.

“Other than that, it is an unqualified right. In other words, Parliament recognised the professional judgement of doctors to prescribe medicine that is best for their patients, based on the exigencies of each disease on a case-by-case basis,” Au said.

The lawyer explained that this pre-existing right was put to the test at the height of the Covid-19 pandemic, when the Health Ministry conducted heavy clampdown with raids on medical clinics and hospitals, seizing Ivermectin, and prosecuting doctors in the criminal court over alleged possession of Ivermectin.

“There was widespread research on the use and dispensation of Ivermectin as a drug to treat Covid-19. Ivermectin is a Group B Poison.

“Some medical practitioners, exercising their professional judgement, dispensed Ivermectin as an off-patent, off-label drug for the use of their patients,” the counsel said.

MAAFIM’s lead counsel is Gurdial Singh Nijar, who is assisted by Au and Lim Sze Han.

Malaysiakini is attempting to reach out to the Attorney-General’s Chambers - which acted for the Health Ministry and the federal government in today’s proceedings - over whether they would be appealing to the Federal Court.

During Malaysia’s movement control order (MCO) period from 2020 to 2021, the Health Ministry - acting on cited public complaints over illegal sales of Ivermectin for treatment of Covid-19 - carried out raids and seizures of the medicine on premises nationwide.

MAAFIM then filed an originating summons at the Kuala Lumpur High Court in September 2021 to seek declarations over the right of doctors to prescribe Ivermectin to patients for medical treatment.

However, on Aug 30 last year, civil court judge Ahmad Kamal Md Shahid dismissed the group’s legal action. MAAFIM then appealed to the Court of Appeal. -- Mkini