Doctors win second round on medicines

By: WERNER MENGES

MEDICAL doctors in Namibia can continue to dispense medication to patients from their consulting rooms, instead of through pharmacies, in the wake of a judgement handed down in the High Court in Windhoek yesterday.

Yesterday’s decision is a sequel to a judgement of Acting Judge Harald Geier that was delivered in the High Court on June 28. In that judgement, regulations that were promulgated in terms of the Medicines and Related Substances Control Act of 2003, and published in the Government Gazette on July 28 2008, were declared unlawful and set aside.

Part of those regulations clamped down on medical practitioners dispensing medication to patients directly from their consulting rooms.

Following the June 28 judgement, the Minister of Health and Social Services, the Medicines Regulatory Council and the Attorney General lodged an appeal to the Supreme Court to have the judgement overturned.

The pending appeal suspended the operation of the June 28 judgement. This meant that the regulations, which required medical doctors to apply to the Medicines Regulatory Council for a licence to be allowed to dispense medication directly to patients, remained in force, and that doctors who continued to dispense medication, without having such a licence, were breaking the law.

For this crime, doctors could be fined up to N$40 000 or sentenced to imprisonment of up to ten years.

With the appeal lodged, the Medical Association of Namibia and one of its members, Tsumeb-based doctor, Pieter Pretorius, filed another application with the High Court to ask for an order that the part of the June 28 judgement which in effect set aside the requirement, that they should get dispensing licences, would not be suspended by the pending appeal.

On their part, the Minister of Health, the Medicines Regulatory Council and Attorney General claimed that the setting aside of all of the regulations of the Medicines Act could have a “devastating effect” on the public and the health sector in general. They claimed that in the absence of the regulations, no provisions existed to regulate the labelling of medicines for both human and animal consumption, and no provisions existed to regulate the import, export and prescription of medicines and scheduled substances, or to stipulate the division of medicines into various categories for the purpose of registration.

If the entire order given on June 28 remains suspended pending the appeal, doctors who continue to dispense medicines without a licence would be exposed to criminal prosecution, Acting Judge Geier stated in yesterday’s judgement. They would face an immense potential for suffering irreparable harm, he found.

On the other hand, he reasoned, there would be a “mere temporary inconvenience” if the suspension of the operation of one part of the court order is lifted pending appeal. That part is the section that would allow medical practitioners to continue providing medication to their patients without a dispensing licence.

Acting Judge Geier ordered the Minister of Health, the Medicines Regulatory Council and the Attorney General to pay the legal costs of the Medical Association of Namibia and Dr Pretorius in this round of the case.

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