'I'm surprised it hasn't done it': OCP could be doing these three things right now to address corporate pressures in pharmacy: lawyer

Ontario’s regulator for pharmacists could start taking action “if it really wanted to” to address corporate practices that contradict the profession’s standards and code of ethics, said one of the lawyers representing the lead plaintiff in a proposed class-action lawsuit against Shoppers Drug Mart Inc., and Loblaw Companies Limited.“There are several levers that the college could pull,” said Aly Háji, a health and regulatory lawyer at Ricketts Harris LLP, the Toronto law firm representing Beamsville, Ont., pharmacist Sivajanan Sivapalan and his corporation Sivajanan Pharmaceuticals Limited.On April 11, Sivapalan filed an application with the Ontario Superior Court of Justice alleging that Shoppers and Loblaw breached their franchise agreements and common duties of good faith and fair dealing with their associate-owners. The claim of contract breaches alleged numerous wrongdoings by Shoppers, including arbitrary termination of franchise agreements, mandated use of a proprietary pharmacy system prone to glitches and imposition of quotas for clinical services such as medication reviews, vaccinations and minor ailments assessment and prescribing.It could take months, if not years, for the claim to be certified and tested in court. In the meantime, there are three courses of action available to the Ontario College of Pharmacists (OCP), Háji told Pharmacy Practice + Business.“First, there's the option of registrar's investigations into the people that are at the top of the Shoppers Drug Mart food chain . . . like the CEO is a pharmacist, several of the key executives are pharmacists,” he said. “Those people are the ones that are kind of in charge of implementing and pushing all these corporate policies.”Read: Are medication review quotas the new traffic tickets?Another action the OCP could take would be to leverage the rules around proprietary misconduct in Ontario’s Drug and Pharmacies Regulation Act. Section 140 of the Act lays out disciplinary measures, including revocation of certificate, “where the (OCP’s) accreditation committee has reason to believe that a pharmacy or its operation fails to conform to the requirements of this Act and the regulations or to any term, condition or limitation to which its certificate of accreditation is subject, or that an act of proprietary misconduct has been committed.”In such circumstances, according to the act, the accreditation committee may refer the accredited person, designated manager, or directors of a corporation to the college’s discipline committee. The accreditation committee may also, at any time, order an interim suspension or impose conditions on a certificate of accreditation, “if it is of the opinion that the conduct or operation of a pharmacy is likely to expose a patient, or a member of the public, to harm or injury.”Potential risk to patient safety has been one of the concerns cited commonly by pharmacists who have stepped forward with their stories about being forced to meet quotas on clinical services.While using proprietary misconduct rules under the Act may present some difficulties for the OCP—in most franchise arrangements, including those with Shoppers Drug Mart, it’s the associate-owners who hold the certificate of accreditation—it is not an insurmountable challenge, said Háji.“You want to tackle the higher-end people,” he said. “But realistically, you could use proprietary misconduct in that way if it was framed properly.”Read: Proposed class-action suit against Shoppers and Loblaw claims terminated owners were berated and ‘perp walked’ out of their storesThere is a third course of action the college can take, ”and I’m surprised it hasn’t done it,” said Haji: Go to the Health Ministry to request expanded legislation around various elements of professional and proprietary misconduct.“If you bolster legislation and implement legislation that says something around ‘a pharmacy cannot be run with outside influence from other organizations’ or something like that … then you end up with a world where the pharmacist is able to not only advocate for themselves but when external influence is put on them, the buck sort of stops with that,” said Haji. “They’re able to break out of that.”In an email to Pharmacy Practice + Business, an OCP spokesperson explained that the limitations in the college’s legislative mandate “restrict us from addressing the problem at the corporate level in a straightforward way, but we are exploring whether there is more we can do to assure ourselves and the public that no matter what ownership model is in place, pharmacy professionals have the autonomy to use their own knowledge, skills and judgment in the delivery of patient care.”In the short term, said the email, the college is relying on its existing regulatory powers to identify instances where corporate direction may be posing the risk of a negative impact on patient care and to ensure the OCP is positioned to act.Some of the actions currently underway at the OCP include a review of its threshold for initiating investigations as well as of its processes and criteria for pharmacy accreditation and assessments for pharmacists and pharmacies.The college is also meeting with four of its committees—accreditation; inquiries, complaints and reports; drug preparation premises; and quality assurance—to review the extent of their authority and ensure they’re aware of their options, which can include referrals to the discipline committee for proprietary misconduct where warranted.At the same time, stated the email, the college is considering setting up a hotline for pharmacy professionals and members of the public.Read: Quotas in pharmacy: Initial survey findings in Saskatchewan are 'aligned' with Ontario's results“With respect to the longer term, we are actively collecting ideas and doing research to determine the most effective possible actions,” wrote the OCP. “These could potentially include looking at our internal data gathering and mining capabilities with a view to more transparent reporting (and) talking to partners in the health system about what ideas they have and what they are doing to help.”The college is also looking for evidence of what approaches have worked or had little influence on the problem in other jurisdictions. It’s currently speaking with other pharmacy regulators across the country “to pool our ideas, our research and our data to see what we might accomplish together.”Whether or not legislation needs to be changed is something the OCP is reviewing, “including potential changes to the (Drug and Pharmacies Regulation Act) but also to other legislation that is not about health but may be having an impact on our sector.”Legislative change is not within the OCP’s authority, noted the email, “and we would look forward to working with government in this regard.”In the meantime, the college expects to publish by mid-May the fully analysed results of its recent members survey on corporate pressure in pharmacy.Read: Young Leader in Pharmacy Aly Háji: "I want to leave some sort of positive mark on the profession of pharmacy as a whole."

'I'm surprised it hasn't done it': OCP could be doing these three things right now to address corporate pressures in pharmacy: lawyer

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