The Federal Court in Putrajaya has upheld a pivotal ruling by the Court of Appeal, confirming that registered medical practitioners are legally allowed to dispense ivermectin to patients under their care, provided they adhere to the provisions outlined in the Poisons Act 1952 and the Poisons Regulations 1952.
This unanimous decision was delivered in the public rulings by a three-member panel led by Chief Justice Tengku Maimun Tuan Mat, who dismissed the government’s appeal after determining that the legal questions raised were irrelevant to the case’s factual context.
The government had sought to challenge the interpretation of key provisions within the Poisons Act 1952, the Poisons Regulations 1952, the Sale of Drugs Act 1952, and the Control of Drugs and Cosmetics Regulations 1984. Despite this, the court found no grounds to overturn the earlier ruling. Tengku Maimun, in her written judgment, emphasised that the Poisons Act serves as a comprehensive legal framework for regulating all matters concerning poisons, as explicitly stated in its preamble. She elaborated that the Act was designed to address every aspect of dealings with poisons, including their sale, supply, and administration.
Sections 19 and 21 of the Poisons Act were highlighted as key statutory provisions granting registered medical professionals the authority to dispense Group B poisons, including ivermectin, in exercising their professional judgment. Tengku Maimun clarified that these provisions expressly exempt qualified practitioners from restrictions typically applied under other laws, provided their actions comply with prescribed regulations. This exemption underscores the autonomy afforded to medical professionals when treating patients based on their clinical expertise.
The judgment also noted that a prescription regime is in place to ensure such activities are carried out within legal boundaries. Tengku Maimun pointed out that while the Sale of Drugs Act focuses on offences related to drug sales and enforcement powers, it does not encompass all dealings involving poisons. She further explained that the Act does not reference “registered medical professionals” in the same detailed manner found in the Poisons Act. Therefore, it could not be applied to limit or override the rights granted under Sections 18, 19, and 21 of the Poisons Act.
The Chief Justice also addressed the government’s reliance on Regulation 7 of the Control of Drugs and Cosmetics Regulations 1984, a subsidiary legislation under the Sale of Drugs Act. She stated that such regulations could not be used to curtail doctors’ rights to dispense medications, as these rights are explicitly safeguarded under primary legislation. By dismissing this argument, the bench reaffirmed that the Poisons Act holds precedence over other laws in matters concerning poisons and their administration by medical professionals.
The 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. Their legal challenge arose after health ministry officials raided Che Amir’s clinic in Ampang during the height of the Covid-19 pandemic in 2021. The raid followed reports that two patients allegedly suffered acute poisoning and breathing difficulties after receiving ivermectin treatment at the clinic. Officials seized quantities of ivermectin found on-site, arguing that it was an unregistered product and that Che Amir was not authorised to sell or dispense it.
Subsequently, Che Amir faced charges in a magistrates’ court for allegedly selling and dispensing ivermectin without proper authorisation. The criminal case against him remains unresolved. In response to these developments, Maafim and Che Amir sought an interpretation of specific provisions within the Poisons Act through a suit filed at the Kuala Lumpur High Court on 21 September 2021.
On 25 August 2023, the Court of Appeal ruled in favour of Maafim and Che Amir, declaring that registered medical practitioners have the right to dispense Group B poisons such as ivermectin, provided they comply with Section 19 of the Poisons Act and its associated regulations. This decision recognised doctors’ professional discretion in determining appropriate treatments for their patients.
The Federal Court’s ruling upholding this decision carries significant implications for medical practitioners nationwide. It reinforces their autonomy in clinical decision-making while ensuring compliance with established legal frameworks. The judgment also provides clarity on regulatory overlaps between different legislative instruments governing poisons and drugs. By affirming that the Poisons Act is a complete and self-contained code on such matters, the court has effectively delineated its scope from that of other laws like the Sale of Drugs Act.
The panel’s decision not to impose costs for proceedings before the Federal Court reflects recognition of this case’s broader public interest. This approach underscores the judiciary’s commitment to addressing issues with far-reaching implications for public health and professional practice.
Lawyers Gurdial Singh Nijar, Abraham Au, Lim Sze Han, and Vam Shir Moi represented Maafim and Che Amir in this case. Senior federal counsels Rahazlan Affandi Abdul Rahim, Liew Horng Bin, and K Saravanan appeared on behalf of the government.
This legal battle highlights ongoing debates surrounding ivermectin’s use during the Covid-19 pandemic. Although some advocate its potential benefits in treating viral infections, others raise concerns about safety and efficacy. The court’s decision does not address these medical controversies but focuses solely on statutory interpretation and practitioners’ rights under existing laws.
