Nurses to continue dispensing medicine
Mpho Mokwape | Monday October 16, 2023 06:00
The nurses’ union had brought an application before court seeking an interim interdict pending a review application against Ministry of Health and Director of Public Service Management (DPSM) on an order authorising that they (nurses, midwifes) should dispense medicines to patients.
In his judgment, Letsididi explained that the union can approach the courts for a review of the Director’s order and in the event they are successful they can always sue the government for compensation or damages.
“In all the circumstances I am not satisfied that the applicant is entitled to an interim interdict and the application is dismissed with costs,” he said.
The judge said the balance of convenience does not support the grant of an interim interdict for the primary reason that, the contemplated review application has to-date not been filed.
He pointed out that clearly the review application will take long time to be launched and decided and that such a delay will cause serious disruptions to an already clogged healthcare system.
He said this will result in dire consequences to the health of members of the public who would have few pharmacists to dispense the medicines.
Justice Letsididi said even if the nurses had passed the possible case hurdle, he has no doubt that granting an interim interdict will cause irreparable harm to the healthcare system in general and the members of the Public in particular.
“The union’s fear is that they will be prosecuted if they continue to dispense medicine. There is no justifiable fear of prosecution in my view. The Director’s directive authorising the applicant to dispense medicine is sufficient defence to any criminal or disciplinary hearing.”
Moreover, Letsididi indicated that the applicant does not stand to suffer any prejudice in dispensing medicine as they have been doing so from time immemorial and they clearly would have had to have the requisite basic experience and training in the field.
Judge Letsididi explained that the nurses’ decision to refuse and desist from dispensing medicine despite an administrative decision to do so, without seeking an order to review the decision was wrongful and unlawful.
“In my view the action to desist from dispensing medicine effectively denied them any prima facie right to thereafter seek an interdict to preserve what had then become for all intents and purposes, an unlawful act. I am therefore of the considered opinion that the current “status quo” having been contaminated by the applicant’s unlawful act of not approaching the court and launching a collateral challenge to the Director’s order, there is no prima facie right to protect,” Letsididi said. He stated that the applicant’s unlawful act rendered the application to maintain the status quo pending a review application untenable precisely because the so called status quo was arrived at after undertaking an unlawful act.
Letsididi also explained that the Director of Health Services is clothed with the power to authorise, in writing, that a person who is not a Pharmacist can dispense medicines and that such authorised person must be at a dispensary.
“Also the Medicines and Related Substances Act defines a dispensary as “any premises in which an authorised dispenser stores, handles and dispenses medicines”. In other words, the dispensary can be any premises, including a clinic or hospital, that stores, handles or dispenses listed medication. In my view, as long as a person, including a nurse, is authorised by the Director of Health Services that authorisation suffices to enable such person to dispense medicine. Accordingly, I come to the finding that the power to authorise the dispensing of medicines is in my view legal and in accordance with Act,” he said.
The material factual background of the case is that registered nurses and midwives in the employment of the Ministry of Health had for years gone by been dispensing medicines to patients at different government health facilities.