My Pharmacy wins case against Government
An independent family-owned pharmacy suffered financial losses and was unable to supply critical medicines after being listed wrongfully as not being registered, a court was told.
The Supreme Court also heard that My Pharmacy was informed that it would not be given a certificate of inspection — even though no such certificate exists, or is required.
Those decisions have now been ruled as having no legal basis after the pharmacy successfully challenged the orders in the Supreme Court.
Welcoming the ruling, Denis Pitcher, who owns the pharmacy with his wife, Olivia Benyak-Pitcher, said: “We are pleased that the court has agreed the Government did not follow the law in obstructing our small business.
“The idea that the Government can arbitrarily take away a business’s licence without due process is deeply disturbing.
“Who would honestly trust doing business in a jurisdiction that operates in this manner, particularly one that touts itself as a home for international business?”
Mr Pitcher added: “These kinds of actions and abuse are not a political problem but a deeply systemic one. This is not a PLP or OBA issue but a sign of a deeply broken administrative government.”
My Pharmacy took legal action against the Minister of Health, the then Chief Medical Officer, Ayoola Oyinloye, and a pharmacy inspector.
According to the judgment, Dr Benyak-Pitcher said Dr Oyinloye caused to be published a list of registered pharmacies in Bermuda on May 11 this year — the first list — which did not include My Pharmacy, suggesting that it was not a registered pharmacy.
On May 25 the CMO published a further list of registered pharmacies — the second list — with two columns setting out the names of “registered” pharmacies and whether they were in possession of a valid certificate of inspection.
The court was asked to rule on:
• Whether the Chief Medical Officer had the statutory authority to conduct annual and unannounced inspections of registered pharmacies
• Whether the Chief Medical Officer has the statutory power to require a successful inspection before issuing a registered pharmacy with a Certificate of Inspection
• Whether the Chief Medical Officer has the statutory authority to publish a list of registered pharmacies indicating pharmacies that have not obtained the annual Certificate of Inspection
The Chief Justice ruled:
• The court grants a declaration that there is no requirement for any registered pharmacy to be issued a certificate by the CMO as there is no legal basis for such a certificate under law
• The CMO should delete from all sources the first list, published on May 11, which does not include My Pharmacy, suggesting it was not a registered pharmacy as at May 1, 2023
• The decision of the CMO to publish on May 25 in the Official Gazette a Register of Pharmacies, including My Pharmacy (the second list), inferring it does not have a valid certificate, should be quashed.
• The CMO must amend the second list to remove the reference to a certificate and any other suggestion that My Pharmacy was not in compliance with its regulatory obligations
The judgment said the second list included My Pharmacy in column 1, indicating it did not have a valid certificate, with the word “no” appearing in column 2 next to My Pharmacy.
It added: “Dr Benyak-Pitcher understands that the only other pharmacies appearing on the second list with a ‘no’ in column 2 next to their name are pharmacies which do not operate currently. It appears that the first list was removed from publication on the Bermuda Government website.”
Before the appearance of the second list, Dr Benyak-Pitcher said that on March 24 an inspector attempted to conduct an unauthorised inspection of My Pharmacy.
The judgment said the inspector, Elizabeth Harrington, was accompanied by a former inspector, Lynanne Bolton. They were told they would not be able to inspect the premises unless they presented Dr Benyak-Pitcher with their credentials, as required by the law.
“Mrs Bolton indicated that she had her credentials and was willing to provide them. However, the inspector stated that she does not need to present credentials and that she should be allowed to inspect.”
Dr Benyak-Pitcher offered Mrs Bolton permission to inspect but did not allow the inspector to inspect without credentials or authorisation. The inspector left with Mrs Bolton and stated that My Pharmacy would be sent a letter “as she had been denied inspection of the pharmacy”.
My Pharmacy opened in November 2019 with a business model to provide patients with speciality medicines at reasonable prices.
It specialises in the supply of medicines to patients suffering from life-threatening illnesses and debilitating conditions, and hard-to-obtain medications because of global shortages and regional restrictions.
My Pharmacy is the sole supplier on the island for many of those critical medicines and its pricing allows patients to obtain the medicines they require where there would otherwise be unable to afford them.
Dr Benyak-Pitcher said that the second list had “significant adverse repercussions on the business” which was “suffering significant damage as a result of this regulatory uncertainty”.
According to the judgment, Dr Benyak-Pitcher said vendors and suppliers questioned whether they could deal with the pharmacy because it appeared on the second list and that there was no valid certificate, “thereby suggesting that it is non-compliant with Bermuda’s laws and regulations”.
It added that the pharmacy had received correspondence and communications from the vendors indicating “that they are unable to supply medicines on the basis of the second list”.
According to the judgment, Dr Benyak-Pitcher said My Pharmacy had suffered monetary losses as a result of the decision.
“The applicant had agreements with at least one vendor to be supplied with medicines on a wholesale basis at a particular price point. As a result of the decision, this vendor has refused to deal with the applicant, forcing the applicant to find alternative sources,” the judgment said.
“Further, as a result of vendors refusing to supply the applicant with medicines, patients’ lives and health are being placed at risk. The applicant is the sole importer of many of these medicines.”
In its submissions, the Government said use of the word “otherwise“ in legislation meant an inspector had the statutory authority to conduct annual announced and unannounced inspections of registered pharmacies.
Mr Pitcher added: “Even more astounding is the argument made by the Government in court that the word ‘otherwise’ somehow justifies a belief of broad, all-encompassing and unquestionable power.
“How can businesses trust and operate under the laws as they are written if the Government believes the word ‘otherwise’ allows them to completely ignore the specific powers and provisions set out in the Act?
“It makes an absolute mockery of our legal and parliamentary system.”
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• To see the Chief Justice’s full judgment, see Related Media.
