A three-member panel led by Chief Justice Tengku Maimun Tuan Mat dismissed the government’s appeal, declining to answer the five legal questions posed as they were deemed unrelated to the facts of the case.
The appeal centred on the interpretation of certain provisions in the Poisons Act 1952 and the Poisons Regulations 1952, the Sale of Drugs Act 1952, and the Control of Drugs and Cosmetics Regulations 1984.
Tengku Maimun said the bench found that the Poisons Act was a complete code governing all matters related to poisons, as outlined in its preamble.
She said the Poisons Act was enacted with the clear intent of regulating and overseeing all dealings involving poisons, including their sale and supply.
“By virtue of Sections 19 and 21 of the Poisons Act, there is an express exemption allowing registered medical professionals to dispense Group B poisons, including ivermectin, in their professional judgment for patient treatment,” she said in her written judgment.
She said a prescription regime exists to ensure that such dispensations or supplies comply with the law.
Tengku Maimun also noted that the Sale of Drugs Act primarily addresses offences related to drug sales and the enforcement powers of officers.
“There is absolutely nothing in the Sale of Drugs Act that speaks to all manner of handlings and dealings of poisons,” she added.
She said the bench also noted that the Sale of Drugs Act does not reference “registered medical professionals” in the manner clearly and lucidly alluded to in the Poisons Act.
Accordingly, Tengku Maimun said the Sale of Drugs Act did not apply to the rights of registered medical practitioners to sell, supply, or administer Group B poisons under Sections 18, 19, and 21 of the Poisons Act.
She said the health ministry could not rely on Regulation 7 of the Control of Drugs and Cosmetics Regulations – a subsidiary legislation – to deny doctors their vested right to dispense medications.
“The appeal is dismissed and we uphold the judgment of the Court of Appeal, including the order it has already made in respect of costs,” said the top judge, who sat with Justices Nallini Pathmanathan and Nordin Hassan.
However, she ruled that there would be no order as to costs for the proceedings before the Federal Court, given the case’s significant public interest.
On Aug 25, 2023, the Court of Appeal ruled that registered medical practitioners were permitted to dispense ivermectin to patients for treatment, provided that they complied with Section 19 of the Poisons Act and its regulations.
The appellate court acknowledged the right of medical practitioners to exercise their professional judgment in dispensing Group B poisons, including ivermectin, to their patients.
The government’s appeal stemmed from an originating summons filed 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 case arose after health ministry officials raided a clinic run by Che Amir in Ampang in 2021, at the height of the Covid-19 pandemic, following reports of acute poisoning and breathing difficulties allegedly suffered by two patients.
Officials seized the ivermectin found in the clinic, arguing that it was not a registered product.
They also claimed that the doctor was not legally permitted to sell or dispense the drug.
Che Amir was subsequently charged in the magistrates’ court for selling and dispensing the drug. The case is still pending.
Maafim and Che Amir filed a suit in the Kuala Lumpur High Court on September 21, 2021, seeking an interpretation of certain provisions in the Poisons Act.
Senior federal counsel Rahazlan Affandi Abdul Rahim, Liew Horng Bin, and K Saravanan represented the government while lawyers Gurdial Singh Nijar, Abraham Au, Lim Sze Han, and Vam Shir Moi represented the doctors.