Friday, November 8, 2019
By NEIL HARTNELL
Tribune Business Editor
Twelve pharmacists have seen their bid for an injunction to force the industry’s self-regulatory body to renew their licences rejected by a Court of Appeal judge.
Appeal justice Roy Jones turned down their application on the grounds that the Bahamas Pharmacy Council had exercised its legal powers under the Pharmacy Act “for the public good” in refusing to renew the licences on the basis that their qualifications were obtained from an “unaccredited” institution.
“The joint applicants are pharmacists licensed by the council to practice at various times since 2010,” appeal justice Jones found. “The joint applicants’ academic qualifications were obtained from the McHari Institute... The council granted the joint applicants’ licences from 2010 and subsequently renewed their licenses annually.
“In January 2017, the council passed a resolution refusing to issue further licences to the joint applicants on the grounds that it acted improperly in registering and issuing licences to the joint applicants previously.
“Under the Pharmacy Act, a condition of being registered as a pharmacist is that the applicant must hold a pharmacy degree ‘from an accredited college or university’. The Council determined that McHari is, and was not, an accredited college or university.”
Appeal Justice Jones had previously allowed the 11 other pharmacists to join the original case that was brought by Philippa Finalyson. While the Supreme Court had rejected her arguments, the Pharmacy Council had continued to issue “provisional licences” until the case was completed.
However, the 12 subsequently sought an injunction that would require the Council to restore their full licences. Appeal justice Jones said the two determining factors in deciding whether to grant this were whether the appeal had any prospect of success, and which side would suffer most.
“The joint applicants contended that their prospects of success in this appeal were good for three reasons,” he wrote. “First, the trial judge’s interpretation of the word ‘accredited’’ in the Pharmacy Act is unreasonable.
“Second, the actions taken by the Council in dealing with the joint applicants created a legitimate expectation that they would be registered. Third, there was no evidence to support the conclusion of the trial judge that the applicants’ legitimate expectation had been frustrated.”
Yet the Council and its attorney, Raynard Rigby, “argued that the prospects of the joint applicants’ success on appeal was weak for three reasons”.
“First, McHari was not at any time an ‘accredited’ college or university,” Appeal justice Jones added, “and therefore the joint applicants were not entitled to registration. Second, the joint applicants did not have a legitimate expectation of being registered after the passing of the Pharmacy Act. Third, the Council acted rationally and with procedural fairness in passing the resolution.”
Agreeing that he could not describe it as a strong case, Appeal justice Jones turned to the second ground where the 12 pharmacists had alleged “they would suffer irremediable harm and hardships, including financial and reputational loss, if a mandatory injunction was not granted to them”.
However, he ruled: “In the facts of the case which were before me, despite the financial loss and hardship to the joint applicants on the one hand, it was impossible to quantify the public interest in monetary terms on the other.
“In my judgment the Council’s decision was in the exercise of statutory powers for the public good. This, in my view, was the dominant factor in deciding whether to grant the mandatory interim injunction sought by the joint applicants. I did not accept that the public interest and the balance of convenience would be served by granting the injunction sought by the joint applicants.”