When regulation is outpaced by technology
Delta Milayo Ndou #DigitalDialogue
There is a case that has been brought before the courts which makes for an interesting study of how technology out-paces regulation and how our regulatory bodies are sometimes not nimble-footed enough to keep up with rapid digital-driven transformations or agile enough to adapt to them.
As more young people find ways of harnessing technology to solve problems they identify, it is imperative that our regulatory bodies afford them the opportunity to explain what they intend to accomplish, how they intend to operate and to offer guidance in terms of how best they can meet the desired requirements.
It does not bode well for a young Zimbabwean to have to seek relief from the courts on a matter that could very well have been resolved by having more responsive policymakers, who are as invested in innovation, as they are in safeguarding standards in an age of rapid change.
It is often the case that when regulation is outpaced by technology, it gets circumvented. This is why bloggers flourish in the blogosphere without having to register with the Zimbabwe Media Commission or any other regulatory body just to be recognised as publishers. This is why video content is flourishing online from comedy skits to music covers uploaded on YouTube to full-time vloggers who engage audiences online without requiring licensing from the Broadcasting Authority of Zimbabwe. In the digital realm, media regulatory bodies for instance, have very little power over content creators, they have no means to punish those who unlicensed or indeed to set standards for them.
Through video, animation, podcasts, texts and images — ordinary users become publishers everyday without having to jump through hoops of meeting a certain criteria or standard.
The Internet lowers the barriers of entry into virtually any sector where technology-driven solutions can be applied.
The quest should not be to frustrate young, innovative thinkers who genuinely desire to harness technology in order to make their societies better, but rather to create, within our regulatory bodies, mechanisms for consultation in order to ensure that our regulations are malleable and transferable to web-based interventions that meet the required standards and practices. I have been long in getting to the point, but in my exasperation, I needed to vent a bit so as to proceed with a level and sober disposition.
Have you ever gone prescription hunting?
In Zimbabwe, when one is seeking prescribed medication, the task generally involves the ailing individual or their caregiver having to trek from one pharmacy to the next making enquiries; continually asking “Do you have this medicine?” and “Do you accept this medical aid as payment?” This goes on until s/he finally finds a pharmacy that has that medicine in stock and also, by the grace of the ancestors, accepts his or her medical aid. The main reason for this state of affairs is that pharmacies are not allowed by law to advertise the medicines that they have in stock to the public according to section 135 of the Health Professions Act of Zimbabwe [Chapter 27:19] and section 40 of the Medicines and Allied Substance Control Act of Zimbabwe [Chapter 15:03].
The reasons for this are too evident to belabour here, suffice to say, advertising can be misleading, malicious and sometimes involve deliberately deceptive messaging that leads to people making decisions based on misinformation.
In the case of medical decisions or medical related communications, misinformation must be avoided at all costs because the consequences are very dire and the targeted recipients are usually very vulnerable, gullible and highly susceptible to being misdirected or misled. There is no end to the stories about callous con artists who rip people off on a daily basis through promoting false or exaggerated benefits of some service, product or opportunity.
It would be catastrophic if our laws did not intervene to protect those who are ailing or those who are caregivers from being misled by peddlers of false hope, miracle cures and healing portions whose authenticity cannot be determined.
So I absolutely and categorically support the legislation barring pharmacies from advertising as a necessary mechanism to protect unwitting and trusting patients or caregivers. However, there is a thin blurry line between advertising that is malicious and prohibited by law and the provision of life-saving information to which access is constitutionally guaranteed under Sections 61, 62 and 76 of the Constitution of Zimbabwe. Given that access to healthcare, freedom to seek information and the right to access information are rights that every Zimbabwean is entitled to, it follows that any endeavour to creditably provide a service that offers accurate and verified medical information to members of the public is commendable.
I refer here to the specific case of a 29-year-old informatician who, with the help of software developers, developed a system that can allow a person to use a computer or mobile device to find — at any given time — a list of pharmacies in his/her vicinity which accept his/her medical aid that are stocking the medicine that he/she is seeking. In the same way we are gratified that our banks afford us mobile apps that let us know the nearest ATM or branch within our vicinity, it would be especially helpful to have an online directory that points us in the direction when what we are seeking are life-saving drugs from pharmacies within our vicinity that happen to have them in stock. It would be particularly useful to be able to confirm remotely and in advance whether our medical aid is accepted at those pharmacies.
A process akin to ‘googling’. That way, a person saves time and effort by only visiting the pharmacy that has what he or she needs. The same can be used to find out where certain scans or medical tests etc. are done without walking from place to place enquiring in person. So this young, innovative Zimbabwean identified a problem and found a technology-based solution for it to ensure a more efficient way of locating drugs and medication that patients and caregivers require. We should be applauding such inventiveness really, but sadly our regulations and regulatory bodies are very slow to the party and this brilliant idea appears to be doomed to fail — strangled by bureaucracy and unyielding intransigence on the part of the relevant governing bodies, who appear to have dismissed the idea out of hand. Anyone who has ever had to go prescription hunting can attest to the toll it takes, the time it consumes and the sheer waste of productive hours this task takes up. If there is a way of doing this better, should we not at least explore it?
Technology-driven solutions require human cooperation
Technology is only as beneficial to us as we allow it to be. It seems obvious that the web-based intervention of a service that helps one to hunt for prescriptions without having to resort to the energy-sapping, up-and-down frenzy of physically going from pharmacy to pharmacy would be a godsend.
And yet, the innovative proposal by this 29-year-old informatician who holds a Bachelor of Pharmacy degree from the University of Zimbabwe, a Master’s degree in Health Systems and Public Policy from the University of Edinburgh and is currently pursuing a PhD in Global Health from the University of Edinburgh, has been rejected. The Medical Information Service Private Limited (MIS) which was established to enable the operationalisation of this informatician’s idea can be of help to the public without violating the provisions of the Health Professions and Medicines and Allied Substances Control Acts.
To demonstrate the sincerity of intent and dedication to offering a reputable service, an application for Intellectual property protection with the African Regional Intellectual Property Organisation (ARIPO) was filed and then the appropriate regulators of healthcare practice in Zimbabwe (The Health Professions Authority of Zimbabwe, Pharmacists Council of Zimbabwe and the Medicines Control Authority of Zimbabwe) were approached to try and get them to approve MIS’ operations. While the Medicines Control Authority of Zimbabwe, conceded that “a medical information service is required in Zimbabwe” and that “MIS is in line with the Constitution of Zimbabwe,the Health Professions Act, the Medicines and Allied Substances Control Act and Pharmacists Professional Conduct Regulations”, it was not within the Medicines Control Authority of Zimbabwe’s mandate to endorse or register an entity like MIS.
This was a fair and apt response. The Health Professions Authority politely communicated that “it will not be within public interest to give a positive response to the issue of MIS as there are no satisfactory mechanisms in place to protect the public” (presumably from MIS), although it is not immediately clear what exactly the public needs protecting from in this instance.
MIS as described by its proprietor is just a service that aims to point the general public in the direction of bona fide registered pharmacies. What harm can emanate from that? And should there indeed be legitimate harm that could be visited upon members of the public due to lack of protection mechanisms, is it not possible then to simply inform or prescribe that MIS put in whatever measures the Profession deems necessary so as to guide the innovator accordingly?
Pharmacists Council of Zimbabwe responded by saying that what MIS intends to do is “not in line with the provisions of the Health Professions Act, in particular, Section 135” (which prohibits advertising), and therefore it could not register MIS either as a health institution or a directory. It is interesting to note how divergent the views of these three regulators are, on the same matter.
Nearly a year of receiving unfavourable and conflicting responses from these regulatory bodies has necessitated an appeal to the High Court of Zimbabwe to seek an order from the Court that would ultimately declare that the intended operations of MIS do not contravene the relevant Acts; Acts that should be read with the Constitution of Zimbabwe in mind. I am surprised though that such a matter should have to be escalated to the high court. How does a proposal that seeks to use a web-based directory to improve the efficiency of accessing medicines, locating prescriptions and other services in Zimbabwe using digital means become so ostensibly unpalatable? There is a need for careful reflection by the entities that administer and enforce these Acts to ensure we don’t kill great ideas simply because we are unfamiliar with the tools by which they seek to improve the lives of our people.
Delta is Head of Digital at Zimpapers. Follow her on Twitter: @deltandou