Relaxation of the Limitation on Pharmacist's Place of Practice

10/28/2013

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Article 11 of the Taiwan Pharmacists Act states: "a pharmacist, upon being registered and obtaining a license to practice, can only practice at one place," which sets a limitation on the type of practice and the place of practice that a pharmacist can pursue. Because of such limitation, when some pharmacists applied for approval to support pharmacies other than their registered places of practice, the competent local authority has been rejecting such applications. Dissatisfied with such limitation, some of the pharmacists sought to change the situation by seeking administrative remedies but such have resulted in vain so they petitioned for constitutional interpretation of Article 11 with the Constitutional Court (the "Court"). On 31 July 2013, the Court rendered its Constitutional Interpretation No. 711 (the "Interpretation").

The Court agrees that the legislative intent of Article 11 is to restrict pharmacists' place of practice as such can help to differentiate pharmacists practicing dispensing practices from the physicians' medical practices, to reduce the possibility of pharmacists engaging in illegal acts such as lending license to a third party, and to better allocate human resources within the medical industry and to protect the citizens' safety during drug usage.

The Court nonetheless holds the view that although the legislative intent of Article 11 is legitimate, the placing of limitation on pharmacists should be reasonable and necessary and should be balance against Articles 15 and 23 of the Constitution (the right to work and the principle of proportionality). Therefore, exceptions to the limitation of Article 11 should be possible if such exceptions are not in violation of the legislative intent of Article 11, or if there is public welfare interest and/or there is a crisis. Although under Article 15 of the Taiwan Pharmacists Act, pharmacists may engage in various practices, the public has different expectations of pharmacists practicing in different work places. However, to better benefit from the expertise of specialized pharmacists, it is understood that there may be discrepancies in the scale of places of practice so as to enable the possibility of providing voluntary medical consultation and joining medical aid work in remote areas. Allowing pharmacists to work at different places of practice such as above-mentioned circumstances does not violate the legislative intent of Article 11 so limiting place of practice is unnecessary. In light of the above, the Interpretation finds that Article 11 violates the principle of proportionality as it does not offer the possibility of striking a balance; thus, it is directed that Article 11 will become void one year from the announcement of the Interpretation unless revised to be in line with the principle of proportionality.

Furthermore, if a medical personnel possesses multiple professional qualifications (such as being both a pharmacist and a nurse), limitation on the type of practice and the place of practice of such personnel should be governed by Article 23 of the Constitution (principle of legal reservation). The Department of Health (DOH; now reformed and renamed as the Ministry of Health and Welfare) had promulgated a direction limiting the place of practice of personnel possessing multiple professional qualifications to one place but such direction had been announced void by the Court since such direction has no statutory basis based on the Pharmaceutical Affairs Act or other relevant laws and regulations and is in violation of the principle of legal reservation.

Based on the Interpretation, it can be held that within reasonable and proportionate extent, limitation on the place of practice placed on pharmacists has been relaxed in the attempt to balance protecting the right of work of pharmacists against safeguarding public welfare interests of citizens.