The Court of Appeal has declared that a doctor is entitled to dispense Ivermectin as part of the course of treatment to a patient under their care.
A three-member bench held that a registered medical practitioner may dispense Ivermectin to a patient for the purposes of medical treatment only, and in compliance with Section 19 of the Poisons Act 1952 and the Poison Regulations 1952.
The ruling was made in answer to two questions posed to the court in an appeal brought by Dr S Vijaendran, president of the Malaysian Association for the Advancement of Functional and Interdisciplinary Medicine (Maafim), and Dr Che Amir Farid Che Isahak.
The questions were:
whether, under the Poisons Act 1952 and the Poisons Regulations 1952, a registered medical practitioner is entitled to dispense Ivermectin as an ingredient to his or her patient; and
whether a registered medical practitioner can dispense Ivermectin to his or her patients for the purpose of the medical treatment of the patient and in compliance with the act and the regulations.
“We answer these (two questions) in the affirmative,” Justice Abu Bakar Jais said when delivering the appellate court’s broad grounds of decision. “We are unanimous that there is an appealable error by the High Court.”
The panel, which also comprised Justices Abdul Karim Abdul Jalil and Collin Lawrence Sequerah, had heard submissions on May 24. Abdul Karim and Abu Bakar were elevated to the Federal Court on June 13.
Abu Bakar said the court agreed with the submissions by lawyers for the appellants that the present case did not involve the recognition of Ivermectin as an alternative remedy for the treatment of Covid-19.
Instead, the court said it was only being asked to determine whether medical practitioners were entitled, when exercising their professional judgement, to dispense poisons listed under Group B in the Poisons Act, which includes Ivermectin, to their patients.
The Court of Appeal also disagreed with a finding by the High Court that the appeal was tantamount to a collateral attack by the appellants on an ongoing criminal investigation and the prosecution of a doctor for possession of Ivermectin.
Instead, Abu Bakar said the appellants were merely seeking reliefs in the form of an affirmation of their pre-existing rights.
The court also ordered the government to pay RM30,000 in costs to the appellants.
The case arose after officials from the health ministry raided a clinic run by Che Amir in Ampang two years ago at the height of the Covid-19 pandemic following reports of acute poisoning and breathing difficulties allegedly suffered by two patients.
Ministry officials seized Ivermectin found in the clinic on grounds that it was not a registered product.
They also claimed that the doctor was not permitted to sell or dispense the drug under the law.
Che Amir was subsequently charged in the magistrates’ court for selling and dispensing the drug. The case is still pending.
Meanwhile, Maafim and Che Amir filed a suit in the Kuala Lumpur High Court and asked for an interpretation of certain provisions in the Poisons Act.
Both applicants took the position that doctors could dispense Ivermectin as a Group B poison to treat their patients according to their own professional judgement.
However, the government and the ministry countered by claiming that allowing doctors to do so would be tantamount to creating a new public health policy.
They further said the court should be ousted from interfering in such issues of public importance.
The High Court agreed with the government and struck out the case, assuming that the applicants (the appellants in the Court of Appeal) had launched the suit as a collateral attack on the investigation and prosecution.
Lawyers Gurdial Singh Nijar, Abraham Au and Lim Sze Han represented the appellants, while senior federal counsels Liew Horng Bin, Rahazlan Affandi Abdul Rashim and K Saravanan appeared for the health ministry and the government. – FMT