Belinda Beresford
Sitting alone behind his lawyers, hands frequently over his face, the director general of health often cut a forlorn figure in court this week.
As the most senior civil servant in the Department of Health, Ayanda Ntsaluba had the unenviable task of being the front-line trooper in defending government policy that he did not create.
Ntsaluba was representing the national and provincial ministers of health against a legal attempt to force wholesale access in the public health sector to a drug that can dramatically cut mother-to-child HIV transmission (MTCT).
The case marks the lowest point to date in the growing hostility between Aids activists, backed by doctors and scientists, and the government. It has again turned the international spotlight on South Africa’s confused policies on HIV/Aids.
Even the judge, Justice Chris Botha, frequently questioned the government’s stance on the use of the drug nevirapine. The drug’s proponents say it will save up to half the 200 babies a day estimated to be born with HIV.
The Treatment Action Campaign (TAC) has asked the high court to force the government to make nevirapine available to HIV-positive pregnant women where medically indicated. Accompanied by its fellow applicants, paediatrician Haroon Saloojee and the Children’s Rights Centre, the TAC also asked that the government be forced to plan and implement an effective national programme to reduce transmission of HIV from mother to child.
Such an MTCT programme would include voluntary counselling and testing, nevirapine where appropriate, and formula milk to prevent children catching the virus through breast milk.
The national minister of health and eight of the nine provincial health MECs have protested that they have already started a responsible and reasonable programme by appointing 18 pilot sites countrywide. State doctors outside those facilities are not allowed to prescribe nevirapine, even if patients request it. There are exceptions in Gauteng and the Western Cape, which have both rapidly expanded their MTCT programme.
The main thrust of the government’s argument seemed to be that lack of resources meant the programme simply could not be expanded. It also questioned the efficacy and safety of nevirapine in this situation, although the treatment has been fully endorsed by doctors and researchers.
Last year Ntsaluba’s own department produced a discussion document that appears to undermine some of the state’s arguments. The government lawyers managed to keep out of court the minutes of a meeting held in August last year between the national and provincial ministers of health.
Attached to the minutes was a discussion document that undermines one of the state’s arguments, that it could not monitor appropriate use of nevirapine.
“Existing mechanisms for motivation for special treatments within the health services could be utilised to control nevirapine use at any health facility,” reads the paper.
The document also acknowledges the ethical issues around not providing a drug that is known to be able to save children’s lives. “Ethically it is important to provide NVP [nevirapine] to these women [women who already know that they are HIV infected] while strengthening existing health services.”
On the legal front, both sides relied heavily on last year’s “Grootboom” case where the courts found that the government had a constitutional responsibility to house children. The TAC argued the Grootboom judgement meant the government should optimise its use of resources.
On the medical and scientific front, Ntsaluba, a qualified obstetrician, listened as the state’s testimony was savaged by advocate Gilbert Marcus for the TAC.
Many of the defences put forward by the health departments appeared disingenuous. For example, the repeated emphasis on the undoubted toxicity of nevirapine confused the risks of using the drug for long-term HIV treatment with the risks involved in giving just one pill to a pregnant woman during labour.
The example of the two provinces, especially the Western Cape, proved a problem for the government. For the health department, advocate Marumo Moerane argued that those provinces were richer and, in the latter case, had less HIV. They also had not suffered from the problem of bantustans under apartheid, and so had greater resources to put into an MTCT programme
Marcus said that this argument reminded him of George Orwell’s Animal Farm: all babies are equal, but some that is those born in the Western Cape are more equal than others. He argued that the state had a responsibility to ensure that provinces had the resources and used them. Much of the provincial Aids budgets have been underspent.