2023-06-22 12:00:00
LAW – On June 13, 2023, the Council of State estimated that Olivier Véran went beyond his powers when he organized the control of the vaccination obligation of liberal health professionals. The former Minister of Health could not suspend reimbursements by health insurance for drugs dispensed by a non-vaccinated pharmacist, nor prohibit these professionals from being replaced during their suspension, or even force them to close their pharmacy. And yet, many pharmacists have lost their jobs and their customers because of these measures.
On December 14, 2021, a liberal pharmacist seized the Council of State to cancel an interministerial instruction taken by Olivier Véran in October 2021. It should be noted that the question of compensation for the damage caused by the former Minister of Health is not addressed in this type of appeal.
Non-vaccinated pharmacists had no choice but to close their pharmacies
With his interministerial instruction, the Minister of Solidarity and Health at the time inevitably ordered the closure of the pharmacies of pharmacists not vaccinated against Covid-19.
Indeed, once the law of August 5, 2021 comes into force, the document provides that “when the situation of breach of the vaccination obligation has been noted (…) the director general of the ARS informs the health professional of his suspension by mail”. Therefore, the suspended pharmacist can no longer exercise his function, even indirectly. He is prohibited from carrying out teleconsultations, by remotely following the medical prescriptions of his clients, or from having himself replaced. “Consequently, the pharmacy must be closed”, recommends the contested administrative act.
The Council of State considers that Olivier Véran did not have the competence to set “a new rule”which went beyond what was provided for by the law of August 5, 2021. For the highest administrative court, another measure provided for in the instruction exceeds the power of the minister.
The suspension of reimbursements by health insurance for drugs dispensed by a non-vaccinated pharmacist is illegal
“When a practitioner (…) continues to practice despite the temporary ban on practicing, he is required to reimburse the social security body for the amount of all the services he has performed” specifies the document.
In other words, a suspended pharmacist who continued to exercise his activity had to reimburse the health insurance fund himself for the drugs delivered on medical prescription.
For the Council of State, Olivier has once again “set a new rule tainted with incompetence” which was not provided for by law.
The measures which provide for the suspension of drug reimbursements, the ban on being replaced or the obligation to close pharmacies are therefore cancelled. They are in principle deemed never to have existed. It is not yet clear at this stage whether this judgment concerns all the liberal health professions or only the activity of pharmacist.
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