Pretoria | Monday
IF THE government disobeyed a Pretoria High Court order to provide nevirapine to HIV-positive pregnant women at state hospitals with the capacity to do so, it would be violating the Constitution, the Treatment Action Campaign (TAC) said on Monday.
”We need a clear statement from the highest level of government (on) whether the court and court orders will be respected,” TAC secretary Mark Heywood said outside the Pretoria High Court.
Judge Chris Botha on Monday ruled that the government should carry out an execution order which he granted earlier this month.
That order compels the government to provide nevirapine for the prevention of mother-to-child-transmission of HIV at state hospitals beyond the 18 pilot sites.
The execution order was granted pending the outcome of an appeal bid against the original order, granted in December last year, to the Constitutional Court.
The government applied for a positive certificate which would allow it to pursue an appeal against the execution order in the Constitutional Court, but Botha issued a negative certificate instead.
In an SABC television interview on Sunday night, Health Minister Manto Tshabalala-Msimang was asked if government would be prepared to follow a court order to roll out its nevirapine programme in light of concerns about the drug.
She said: ”My own view is that the judiciary cannot prescribe from the bench and that we have a regulatory authority in this country that is interacting with the regulatory authority FDA (Food and Drug Administration) of the United States and I think we must allow them to assist us in reaching conclusions.” Asked whether the government would stand by the court’s decision, the minister said: ”No, I think the courts and the judiciary must also listen to the authorities regulatory authorities both from this country and the United States.”
Asked if she was saying no, Tshabalala-Msimang said: ”Yes and no. I’m saying no.”
On Monday, Positive Women’s Network director Prudence Mabele, who has lived with HIV for 10 years, said: ”I get so frustrated by our own government depriving us the right to live.”
Democratic Alliance representative Sandy Kalyan said the minister should accept and respect the court order.
”She must finally accept that she was wrong and get on with the battle to save lives, rather than battles in court,” she said.
United Democratic Movement secretary-general Malizole Diko said: ”It is indeed a pity that government’s arrogant stance in the matter served no purpose other than wasting taxpayers’ money. The UDM calls on government to lay the debate to rest.”
Kalyan said it was to be hoped that the minister was not serious about ignoring an order of court.
”Along that path lies the destruction of the law,” she said.
In Friday’s court hearing, Marumo Moerane SC, for the government, argued that the possible de-registration of nevirapine by the Medicines Control Council (MCC) was a crucial issue in the case.
In a letter last week, the MCC alerted Tshabalala-Msimang to serious concerns which the FDA had expressed about a nevirapine test conducted by a US institution in Uganda.
According to the letter, dated Wednesday, questions had been raised about the reporting and documentation of the study on the use of Viramune (of which nevirapine is the active ingredient) for the prevention of mother-to-child-transmission of HIV.
The MCC said it would review nevirapine in the light of those developments.
Heywood said all major health bodies in the world supported the drug. These included the Centre for Disease Control, the World Health Organisation, the United Nations Aids programme and the American National Institute for Health.
”There is no question about its safety and efficacy,” he said.
Almost 9 000 women at the pilot sites had used nevirapine and there were no deaths or serious adverse side-effects reported.
Mabele said: ”I know many HIV positive women who have HIV negative children because of this drug.”
Heywood said the judgement entitled all doctors at state hospitals who believed that there was the capacity to prescribe nevirapine, to request its supply. He said the judge’s statements made for a strong case for patients and doctors to sue the government for failure to provide the medication and to prevent enormous suffering. – Sapa