The government could find itself in court again for its failure to supply promised anti-retroviral drugs
Paul Kirk
The government is likely to face a new legal battle after temporarily halting the use of a drug, nevirapine, that prevents mother-to-child infection
Last year the national Department of Health promised to begin widespread trials of the drug, but in its newest about-turn on the HIV/Aids crisis it has now referred the issue to the Cabinet.
The country’s largest HIV/Aids pressure group the Treatment Action Campaign (TAC) has accused the government of breaking its promises and is considering legal action.
The trials, at 18 hospitals across the country, were supposed to have started more than two months ago. The drug, registered with the Medicines Control Council for use in South Africa, costs only R21 a dose. A single dose is all that is required to reduce the incidence of infection by roughly 30%. The trial runs alone would have prevented around 30 000 mother-to-child infections this year.
Mark Heywood of the Aids Law Project at the University of the Witwatersrand, which litigates on behalf of the TAC, said while papers are not yet being prepared, legal action is possible.
Said Heywood: “We have taken a decision at the level of the national executive of the Treatment Action Campaign and have passed a resolution allowing us to reinstitute legal action against the department.”
In a widely publicised move last year the Department of Health made a commitment to dispense nevirapine around the country as part of a pilot project. Through this project the drug would reach roughly 10% of expectant mothers attending antenatal clinics in real terms, more than 100 000 women.
When the department announced its pilot project the TAC backed off on a pending court case, demanding that the department institute a programme to prevent mother-to-child transmission of HIV.
This week, the health department told the Mail & Guardian that the pilot project is not going to happen. The decision on whether to use nevirapine has been referred back to the Cabinet for discussion a decision that, said the TAC, it has not been informed of by officials, despite numerous requests for clarification.
Health department representative Sibane Mngade confirmed the referral to the Cabinet. He said because he is abroad at present, he is not able to give a complete explanation for the reasons behind the referral.
Said Heywood: “There is no justifiable reason to refer a matter of public health policy, in line with government’s strategic Aids plan, back to the Cabinet. This completely unnecessary step will be costed in avoidable HIV infections.
“Everybody, apart from a few headcases, accepts nevirapine as a useful tool to fight HIV infections. All it needs is one tablet for the mother and one dose of a syrup for the child.”
The M&G has obtained a letter from the TAC to Minister of Health Manto Tshabala-Msimang, threatening legal action. In part the letter reads: “The announcement of the government’s proposal to implement a Nevirapine-based PMTCT [prevention of mother-to-child transmission] pilot programme, while inadequate, was accepted as the first phase in the progressive realisation of a country-wide programme for PMTCT.
“TAC therefore suspended its intended legal action in the belief that the government was acting in good faith.”
TAC representative Promise Mthembu termed the decision to refer the use of nevirapine to Cabinet “completely unacceptable and also unconscionable. Cabinet could take two months or even two years to make a decision. And while the government prevaricates people will die.
“The state is obliged by the Constitution to provide health-care services. Should the state not do so we will use all legal means to force them to do so.”