Medicines dispensing case set for June
e Dispensing of Medicines and Related Substances Review case by Botswana Nurses Union ( BONU) has been moved to the 21st June 2024. e postponement for the roll call came about due to the unavailability of Justice Gabriel Gabanagae.
Last year BONU took the Director of Health Services to court seeking an interim interdict pending a review application on whether Union members should not dispense medicines to patients. Justice Modiri Letsididi dismissed the application, stating that he is satis ed the union has a remedy available. “e Applicants can approach the courts for a review of the Director’s order. In the event they are successful in that review the Applicants can always sue the Respondent for compensation and/ or damages. “In all the circumstances I am not satis ed that the Applicants are entitled to an Interim Interdict. In the result the order of this court is the following: e Application is dismissed with costs”, the judge said.
He indicated that 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 led. Clearly the review application will take long time to be launched and decided. He added that such a delay will cause serious disruptions to an already clogged healthcare system resulting in dire consequences to the health of members of the public who would have few pharmacists to dispense prescribed medicines to them.
Justice Letsididi stated in his judgement that even if the union had passed the prima facie case hurdle, “I have 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.” As for the Applicant’s fear that they will be prosecuted if they continue to dispense medicine, the judge pointed out that there is no justi able fear of prosecution in his view. He said the Director’s directive authorising the Applicants to dispense medicine is su cient defence to any criminal or disciplinary hearing. “On the other hand, the harm that will befall the public Healthcare system and the concomitant harm to the patients is obvious precisely due to the fact that even before the decision was taken by the Director to authorise the Applicant to dispense medicine, it has not been gainsaid that there was unquestionably a shortage of Pharmacists in the healthcare system. “Moreover, the Applicants do 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 eld”, Justice Letsididi found. In this case, the judge said BONU’s 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 e ectively denied them any prima facie right to therea er seek an interdict to preserve what had then become, for all intents and purposes, an unlawful act,” he explained.
Justice Letsididi stated that he is 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.
He added “I arrive at this nding on the basis that the Applicant’s unlawful act renders the Application to maintain the status quo pending a review application untenable precisely because the so called status quo was arrived at a er undertaking an unlawful act.”