Plea questions sanctity of prescriptions generated by doctors employed by e-pharmacies, HC asks govt to reply

Ahmedabad: Responding to a plea that questioned the sanctity of prescriptions generated on phone by medical professionals employed by e pharmacies, the Gujarat high court has now issued a notice to Government and asked them to submit affidavits addressing the contentions in the plea.

The plea questioned several points related to the online sale of medicines at e pharmacy alleging that such sales of schedule H, H1, X drugs stand in violation of the Drugs and Cosmetic Act, 1990. 

It submitted that the websites selling the drugs and prescription medicines do not have licenses as required under Section 18 of the Drugs and Cosmetic Act, 1940 read with Rule 61 and 62 of the Drugs Rules, 1945. Further, it was submitted that it is shocking that in the online pharmacies, certain scheduled drugs are dispensed without any Prescription, which can be ordered by the child aged below 18 years and which would be injurious to his health.

The provision with regard to issuance of license to the e-pharmacy firms, also does not satisfy as there is no such provision mentioned in the Act, the petition stated.

The petitioner further submitted before the court that the several online e-pharmacy service providers were misusing the process by arranging a call between the customer and their employed medical professionals, wherein on the basis of a skeletal discussion, the prescription is generated and the doctors providing such consultation, do not even see the diagnostic or other medical reports of the purported patient and issue the prescription on the basis of very limited and formal conversation, which affect the health of the citizens directly.

It was also submitted that such prescription has no sanctity in the eyes of law and the National Medical Commission (NMC), which has replaced the erstwhile Medical Council of India needs to take action against the doctors, who provide such prescriptions, which are not genuine. The petitioner claimed that the specialized qualification of such doctors can be questioned.

Expressing concern over the online sale of scheduled drugs and its possible impact on the public health, the Gujarat High Court on Monday issued notice on a plea flagging the matter.

Opining the allegations made in the plea to be true, the HC bench comprising of Justice A.S. Supehia has issued notice to the respondents including the Government and asked them to submit affidavits addressing the contentions in the plea.

"In view of the submissions advanced by the learned advocate Mr. Patel, prima facie this Court is of the opinion that the allegations made in the writ petition appear to be true and if the sale of the scheduled drugs in such a manner is going on then the same will have a direct adverse impact on the health and well being of the citizens," the court observed.

"Under the circumstances, issue Notice returnable on 29.07.2022. Learned AGP waives service of notice for and on behalf of the respondent No.2. The respondents are directed to file appropriate affidavit on or before the next date of hearing dealing with all the contentions raised in the writ petition. It will be open for the petitioner to serve the respondents through RPAD over and above the regular mode of service," it directed.

The petitioner submitted that the Drugs and Cosmetic Act, 1990 does not allow online sale of medicines and scheduled drugs and such illegal sale has serious consequence on the public health. Further referring to the circular dated 30.12.2015, via which Drugs Controller General of India has banned the sale through e-pharmacies, the plea pointed out that in the concerned circular, all the State and Union Territories Drugs Controller had been instructed to put a strict vigil on the online sale of medicines.

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Besides, the States had also been directed to take action against those indulging in online sale of medicines in violation of the Drugs and Cosmetics Act and the concerned rules. 

The counsel for the petitioner, Learned advocate Mr. Vijay Patel assisted by learned advocate Mr. Darshan Dave further referred to the report dated 30.09.2016 was also given by the sub-committee constituted by the Drug Consultative Committee regarding the sale of medicines online. In that report that Sub-committee had also issued various recommendations, which the petitioner alleged have not been followed and implemented.

Filing the plea, the petitioner further submitted before the court that the websites selling the drugs and prescription medicines do not have licenses as required under Section 18 of the Drugs and Cosmetic Act, 1940 read with Rule 61 and 62 of the Drugs Rules, 1945. The provision in this regard for issuing license to the e-pharmacy firms also does not satisfy as there is no such provision mentioned in the Act, the petitioner argued.

At this outset, the petitioner pointed out that using the online pharmacy services, even a child below 18 years can obtain certain scheduled drugs without any prescription, which might be injurious to his health. Giving example, the counsel for the petitioner submitted that the sale of Schedule H, H1 and X drugs under the Drugs Rules, 1945 / Indian Medical Act, 1956 can only be allowed on the prescription of the registered medical practitioner and online websites are selling the drugs and prescribed medicines openly and freely, without any compliance of provisions of law and regulations.

With all these submissions and references, the petitioner prayed that such practices need to be stopped and prohibited.

Taking note of the submissions, the Court prima facie opined that the allegations made in the petition were true and also expressed its concern regarding the sale of scheduled drugs and its possible adverse impact on the health and well being of the citizens.

"In view of the submissions advanced by the learned advocate Mr.Patel, prima facie this Court is of the opinion that the allegations made in the writ petition appear to be true and if the sale of the scheduled drugs in such a manner is going on then the same will have a direct adverse impact on the health and well being of the citizens," the court observed.

To read the court order, click on the link below.

https://medicaldialogues.in/pdf_upload/gujarat-hc-order-180216.pdf

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