The public protector ruled on Friday against a complaint that the Cabinet acted improperly when it approved the Department of Health’s plan for the treatment of HIV/Aids.
This followed a complaint by Johannesburg woman Anita Allen, who maintained the Cabinet’s decision on November 19 2003 to approve the Operational Plan for Comprehensive Treatment and Care for HIV and Aids was unconstitutional and illegal.
According to the report on the matter by Public Protector Lawrence Mushwana, Allen said the plan was based on government policy that HIV causes Aids, although — according to her — the link had not yet been proved.
The report describes Allen as a former journalist, editor and science books reviewer who is not a medical scientist by training, but who has compiled a database on the subject and who is ”very outspoken on the matter [of HIV/Aids]”.
In Allen’s complaint, she said the hypothesis that HIV exists and causes Aids is an ”unproven proposition” and that no reliable tests to diagnose HIV currently exist.
She said the Cabinet did not properly apply its mind when it approved the plan. Its decision was not based on the best available evidence and was, therefore, irrational.
Mushwana said the complaint involved extensive research and interviews, including whether his office had the authority to investigate the complaint.
Minister of Health Manto Tshabalala-Msimang’s comments to him during his research were that she acknowledged that there was a group of people who disputed the link between the virus and Aids, and who were opposed to the use of anti-retroviral therapy.
It was in response to these questions that President Thabo Mbeki appointed the presidential Aids advisory panel to deliberate on these issues and make recommendations, which it continues to do.
But, ”Currently the government’s response to the epidemic is premised on the internationally accepted assumption that HIV causes Aids,” Tshabalala-Msimang said in her reply.
Although there were many questions on ”the complex nature of HIV infection”, something had to be done to prevent new infections and to mitigate the impact.
She noted that the government was forced to accelerate its cautious approach on the use of anti-retrovirals through a Constitutional Court judgement. It could not ignore the fact that although side effects did occur, there was overwhelming evidence that anti-retrovirals do work in controlled circumstances.
Mushwana found that differences between scientists could not be ignored, but the state was expected to act responsibly and reasonably under the circumstances.
Last year, the World Health Organisation (WHO) said that by the end of 2003, about 40-million people were living with HIV/Aids.
Mushwana found the state was ”constitutionally obliged” to develop and implement policies to give effect to the right to access to health care.
He said the government’s policy that HIV causes Aids is an internationally accepted assumption that is supported by the WHO and UNAids.
Although research is continuing, as a member of the WHO the government is committed to follow and apply international standards and best practices.
The Department of Health had taken steps to ensure that the negative impact of anti-retrovirals was minimised, that the drugs were monitored and that tests complied with WHO recommendations.
”The Cabinet’s decision to approve the operational plan was reasonable and proper and in accordance with the recommendations and initiatives of the WHO and UNAids,” Mushwana concluded.
Allen said she feels vindicated by the report because it noted that there are outstanding questions on the subject.
It also found that the government is behaving responsibly and is conforming to international laws and standards.
She said she has not changed her mind on her belief that the best available evidence is not being used for international consensus.
”My main problem is that [international consensus] does not take into account the newest finding because they are not mainstream yet, they are still on the fringes.” — Sapa