INSIGHTS: Pharmacy location rules: Who are ‘persons aggrieved’ by new approvals?

Meridian Lawyers acts for pharmacists in applications for new approvals to supply pharmaceutical benefits (PBS) under section 90 of the National Health Act 1953 (Cth) (Act).

We also advise and represent pharmacists in opposing applications for new approvals, whether by way of judicial review by the Court, or merits reviews by the Administrative Appeals Tribunal. When considering an application for judicial review there is a threshold question of whether the applicant has ‘legal standing’ to commence proceedings, that is, whether you are a person aggrieved.

In the case of Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060, the Courts clarified that a ‘person aggrieved’ must establish that he is a person who has a complaint or grievance, which he will suffer as a consequence of the decision ‘beyond that of an ordinary member of the public’ and that he must suffer more greatly or in a different way than other members of the community.

It is now generally established law that a pharmacist who supplies PBS at premises in the vicinity of a proposed new pharmacy:

• has an interest that is beyond that of an ordinary member of the public;
• has interests which may be adversely affected by the decision whether to approve; and
• does not generally have to provide evidence of financial loss in order to establish that he or she is a person aggrieved for the purposes of bringing judicial review proceedings.

TIPS:

• Pharmacists whose interests may be adversely affected by an application for approval will generally be offered the opportunity by the ACPA to make representations as to whether the application fulfils the requirements of the relevant Pharmacy Location Rule.
• It is possible for applicants for PBS approvals and persons aggrieved by decisions to seek reviews of decisions in certain circumstances.
• Whether the review should be by way of applications for judicial review or by way of a review in the Administrative Appeals Tribunal depends on the individual circumstances of a case and the cost implications vary.
• Short timescales may apply and pharmacists should seek prompt legal advice regarding the grounds for challenging decisions.

For more information on pharmacy location rules, please contact Principal Georgina Odell.

This article was published in the Autumn edition of Pharmacy insights.