Chapter eight (bio)terrorism a. Introduction

Minister of Health v. Treatment Action Campaign

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Minister of Health v. Treatment Action Campaign

South Africa Constitutional Court,

2002(10) BCLR 1033(CC)

The HIV/AIDS pandemic in South Africa has been described as "an incomprehensible calamity" and "the most important challenge facing South Africa since the birth of our new democracy" and government's fight against "this scourge" as "a top priority". It "has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy". These are not the words of alarmists but are taken from a Department of Health publication in 2000 and a ministerial foreword to an earlier departmental publication.

This appeal is directed at reversing orders made in a High Court against government because of perceived shortcomings in its response to an aspect of the HIV/AIDS challenge. The court found that government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. More specifically the finding was that government had acted unreasonably in (a) refusing to make an antiretroviral drug called Nevirapine available in the public health sector where the attending doctor considered it medically indicated, and (b) not setting out a timeframe for a national program to prevent mother-to-child transmission of HIV.

The case started as an application in the High Court in Pretoria on 21 August 2001. The applicants were a number of associations and members of civil society concerned with the treatment of people with HIV/AIDS and with the prevention of new infections. In this judgment they are referred to collectively as "the applicants". The principal actor among them was the Treatment Action Campaign (TAC). The respondents were the national Minister of Health and the respective members of the executive councils (MECs) responsible for health in all provinces save the Western Cape. They are referred to collectively as "the government" or "government".

Government, as part of a formidable array of responses to the pandemic, devised a program to deal with mother-to-child transmission of HIV at birth and identified Nevirapine as its drug of choice for this purpose. The program imposes restrictions on the availability of Nevirapine in the public health sector. This is where the first of two main issues in the case arose. The applicants contended that these restrictions are unreasonable when measured against the Constitution, which commands the State and all its organs to give effect to the rights guaranteed by the Bill of Rights. This duty is put thus by sections 7(2) and 8(1) of the Constitution respectively:

"7(2)The State must respect, protect, promote and fulfill the rights in the Bill of Rights.

. . .

8(1)The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of State."

At issue here is the right given to everyone to have access to public health care services and the right of children to be afforded special protection. These rights are expressed in the following terms in the Bill of Rights:

"27(1)Everyone has the right to have access to -

(a)health care services, including reproductive health care;. . .

(2)The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights. . .

28(1) Every child has the right -. . .

(c) to basic nutrition, shelter, basic health care services and social services."

The second main issue also arises out of the provisions of sections 27 and 28 of the Constitution. It is whether government is constitutionally obliged and had to be ordered forthwith to plan and implement an effective, comprehensive and progressive program for the prevention of mother-to-child transmission of HIV throughout the country. ***

The State is obliged to take reasonable measures progressively to eliminate or reduce the large areas of severe deprivation that afflict our society. The courts will guarantee that the democratic processes are protected so as to ensure accountability, responsiveness and openness, as the Constitution requires in section 1. As the Bill of Rights indicates, their function in respect of socio-economic rights is directed towards ensuring that legislative and other measures taken by the State are reasonable. As this Court said in Grootboom, "[i]t is necessary to recognize that a wide range of possible measures could be adopted by the State to meet its obligations …” As was said in Soobramoney: "The State has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society."

Courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the State to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.

We therefore conclude that section 27(1) of the Constitution does not give rise to a self-standing and independent positive right enforceable irrespective of the considerations mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the State to "respect, protect, promote and fulfill" such rights. The rights conferred by sections 26(1) and 27(1) are to have "access" to the services that the State is obliged to provide in terms of sections 26(2) and 27(2).***

It is the applicants' case that the measures adopted by government to provide access to health care services to HIV-positive pregnant women were deficient in two material respects: first, because they prohibited the administration of Nevirapine at public hospitals and clinics outside the research and training sites; and second, because they failed to implement a comprehensive program for the prevention of mother-to-child transmission of HIV.*** The applicants' contentions raise two questions, namely, is the policy of confining the supply of Nevirapine reasonable in the circumstances; and does government have a comprehensive policy for the prevention of mother-to-child transmission of HIV.

In deciding on the policy to confine Nevirapine to the research and training sites, the cost of the drug itself was not a factor*** In substance four reasons were advanced in the affidavits for confining the administration of Nevirapine to the research and training sites. First, concern was expressed about the efficacy of Nevirapine where the "comprehensive package" is not available. *** Secondly, there was a concern that the administration of Nevirapine to the mother and her child might lead to the development of resistance to the efficacy of Nevirapine and related antiretrovirals in later years. Thirdly, there was a perceived safety issue. Nevirapine is a potent drug and it is not known what hazards may attach to its use. Finally, there was the question whether the public health system has the capacity to provide the package. It was contended on behalf of government that Nevirapine should be administered only with the "full package" and that it was not reasonably possible to do this on a comprehensive basis because of the lack of trained counselors and counseling facilities and also budgetary constraints which precluded such a comprehensive scheme being implemented.

We deal with each of these issues in turn. First, the concern about efficacy. It is clear from the evidence that the provision of Nevirapine will save the lives of a significant number of infants even if it is administered without the full package and support services that are available at the research and training sites. Mother-to-child transmission of HIV can take place during pregnancy, at birth and as a result of breastfeeding.*** the wealth of scientific material produced by both sides makes plain that sero-conversion of HIV takes place in some, but not all, cases and that Nevirapine thus remains to some extent efficacious in combating mother-to-child transmission even if the mother breastfeeds her baby. As far as resistance is concerned, the only relevance is the possible need to treat the mother and/or the child at some time in the future. Although resistant strains of HIV might exist after a single dose of Nevirapine, this mutation is likely to be transient. At most there is a possibility of such resistance persisting, and although this possibility cannot be excluded, its weight is small in comparison with the potential benefit of providing a single tablet of Nevirapine to the mother and a few drops to her baby at the time of birth. The prospects of the child surviving if infected are so slim and the nature of the suffering so grave that the risk of some resistance manifesting at some time in the future is well worth running.

The evidence shows that safety is no more than a hypothetical issue. The only evidence of potential harm concerns risks attaching to the administration of Nevirapine as a chronic medication on an ongoing basis for the treatment of HIV-positive persons. There is, however, no evidence to suggest that a dose of Nevirapine to both mother and child at the time of birth will result in any harm to either of them. *** The policy of confining Nevirapine to research and training sites fails to address the needs of mothers and their newborn children who do not have access to these sites. It fails to distinguish between the evaluation of programs for reducing mother-to-child transmission and the need to provide access to health care services required by those who do not have access to the sites.

In Grootboom (supra) this Court held that: "[t]o be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavor to realize. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realization of the right. ***

In evaluating government's policy, regard must be had to the fact that this case is concerned with newborn babies whose lives might be saved by the administration of Nevirapine to mother and child at the time of birth.***the provision of a single dose of Nevirapine to mother and child where medically indicated is a simple, cheap and potentially lifesaving medical intervention.

Children's rights

There is another consideration that is material. This case is concerned with newborn children. Sections 28(1)(b) and (c) of the Constitution provide that

"[e]very child has the right -
(b)to family care or parental care, or to appropriate alternative care when removed from the family environment;

(c)to basic nutrition, shelter, basic health care services and social services."

The provision of a single dose of Nevirapine to mother and child for the purpose of protecting the child against the transmission of HIV is, as far as the children are concerned, essential. Their needs are "most urgent" and their inability to have access to Nevirapine profoundly affects their ability to enjoy all rights to which they are entitled. Their rights are "most in peril" as a result of the policy that has been adopted and are most affected by a rigid and inflexible policy that excludes them from having access to Nevirapine.

The State is obliged to ensure that children are accorded the protection contemplated by section 28 that arises when the implementation of the right to parental or family care is lacking. Here we are concerned with children born in public hospitals and clinics to mothers who are for the most part indigent and unable to gain access to private medical treatment which is beyond their means. They and their children are in the main dependent upon the State to make health care services available to them.***

We are also conscious of the daunting problems confronting government as a result of the pandemic. And besides the pandemic, the State faces huge demands in relation to access to education, land, housing, health care, food, water and social security. These are the socio-economic rights entrenched in the Constitution, and the State is obliged to take reasonable legislative and other measures within its available resources to achieve the progressive realization of each of them. In the light of our history this is an extraordinarily difficult task. Nonetheless it is an obligation imposed on the State by the Constitution.***
South African courts have a wide range of powers at their disposal to ensure that the Constitution is upheld. These include mandatory and structural interdicts. How they should exercise those powers depends on the circumstances of each particular case. Here due regard must be paid to the roles of the legislature and the executive in a democracy. What must be made clear, however, is that when it is appropriate to do so, courts may - and if need be must - use their wide powers to make orders that affect policy as well as legislation.*** In the present case we have identified aspects of government policy that are inconsistent with the Constitution. The decision not to make Nevirapine available at hospitals and clinics other than the research and training sites is central to the entire policy. Once that restriction is removed, government will be able to devise and implement a more comprehensive policy that will give access to health care services to HIV-positive mothers and their newborn children, and will include the administration of Nevirapine where that is appropriate. The policy as reformulated must meet the constitutional requirement of providing reasonable measures within available resources for the progressive realization of the rights of such women and newborn children. This may also require, where that is necessary, that counselors at places other than at the research and training sites be trained in counseling for the use of Nevirapine. We will formulate a declaration to address these issues.***
It is essential that there be a concerted national effort to combat the HIV/AIDS pandemic. The government has committed itself to such an effort. We have held that its policy fails to meet constitutional standards because it excludes those who could reasonably be included where such treatment is medically indicated to combat mother-to-child transmission of HIV. ***We consider it important that all sectors of the community, in particular civil society, should co-operate in the steps taken to achieve this goal. In our view that will be facilitated by spelling out the steps necessary to comply with the Constitution. We will do this on the basis of the policy that government has adopted as the best means of combating mother-to-child transmission of HIV, which is to make use of Nevirapine for this purpose. Government must retain the right to adapt the policy, consistent with its constitutional obligations, should it consider it appropriate to do so. The order that we make has regard to this. ***We accordingly make the following orders:

1. The orders made by the High Court are set aside and the following orders are substituted.

2. It is declared that:

(a)Sections 27(1) and (2) of the Constitution require the government to devise and implement within its available resources a comprehensive and co-ordinated program to realize progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV.

(b)The program to be realized progressively within available resources must include reasonable measures for counseling and testing pregnant women for HIV, counseling HIV-positive pregnant women on the options open to them to reduce the risk of mother-to-child transmission of HIV, and making appropriate treatment available to them for such purposes.

(c)The policy for reducing the risk of mother-to-child transmission of HIV as formulated and implemented by government fell short of compliance with the requirements in subparagraphs (a) and (b) in that:

(i)Doctors at public hospitals and clinics other than the research and training sites were not enabled to prescribe Nevirapine to reduce the risk of mother-to-child transmission of HIV even where it was medically indicated and adequate facilities existed for the testing and counseling of the pregnant women concerned.

(ii)The policy failed to make provision for counselors at hospitals and clinics other than at research and training sites to be trained in counseling for the use of Nevirapine as a means of reducing the risk of mother-to-child transmission of HIV.

3. Government is ordered without delay to:

(a)Remove the restrictions that prevent Nevirapine from being made available for the purpose of reducing the risk of mother-to-child transmission of HIV at public hospitals and clinics that are not research and training sites.

(b)Permit and facilitate the use of Nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospitals and clinics when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the facility concerned this is medically indicated, which shall if necessary include that the mother concerned has been appropriately tested and counseled.

(c)Make provision if necessary for counselors based at public hospitals and clinics other than the research and training sites to be trained for the counseling necessary for the use of Nevirapine to reduce the risk of mother-to-child transmission of HIV.

(d)Take reasonable measures to extend the testing and counseling facilities at hospitals and clinics throughout the public health sector to facilitate and expedite the use of Nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV.

4.The orders made in paragraph 3 do not preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV.***

Notes and Questions

  1. The provisions in the South African constitution discussed in this case are modeled on those in the International Covenant on Economic, Social and Cultural Rights—and placing the provisions of this international treaty in legislation and constitutional provisions of individual states is an especially effective way of making international law integral to national law. Note that article 12 of the Covenant includes not only appropriate health care, but also the underlying determinants of health, including clean water, sanitation, safe food, housing, and health-related education. In addition, South Africa’s constitution adopts specific provisions in the Convention on the Rights of the Child, which, of course, have special application in this case.

  1. The decision in the nevirapine case illustrates both the strength and the weakness of relying on courts to determine specific applications of the right to health. The strength is that the right to health is a legal right, and since there can be no legal right without a remedy, courts will provide a remedy for violations of the right to health. In this regard, it is worth noting not only that the right to health and access to health care articulated in the Universal Declaration of Human Rights has been given more specific meaning in the International Covenant on Economic, Social, and Cultural Rights and other internationally binding documents on human rights, but also that these rights have been written into the constitutions of many countries, including South Africa. The widespread failure of governments to take the right to health seriously, however, means that we are still a long way from the realization of this right. Nonetheless, the activism of many nongovernmental organization, such as the Treatment Action Campaign, in the area of health rights, provides some ground for optimism that government inaction will not go unchallenged.

The weakness of relying on courts is that the subject matter of the right to health in a courtroom struggle is likely to be narrow, involving interventions such as kidney dialysis or nevirapine therapy. The HIV epidemic demands a comprehensive strategy of treatment, care, and prevention, including education, adequate nutrition, clean water, and nondiscrimination. The government of South Africa has so far been unwilling to designate the HIV epidemic as a national emergency or to take steps to make the prevention and treatment of HIV infection its highest health priority.

  1. This was the third case in which the Constitutional Court had been asked to enforce a socioeconomic right under the South African constitution. The first, Soobramoney v. Minister of Health, was also a right-to-health case, 1997 (12) BCLR 1696 (CC). It involved a 41-year-old man with chronic renal failure and a history of stroke, heart disease, and diabetes, who was not eligible for a kidney transplant and therefore required lifelong dialysis to survive. The renal-dialysis unit in the region where he lived, which had 20 dialysis machines—not nearly enough to provide dialysis for everyone who required it—had a policy of accepting only patients with acute renal failure. The health department argued that this policy met the government’s duty to provide emergency care under the constitution. Patients with chronic renal failure, like the petitioner, did not automatically qualify.

In considering whether the constitution required the health department to provide a sufficient number of machines to offer dialysis to everyone whose life could be saved by it, the court observed that under the constitution, the state’s obligation to provide health care services was qualified by its “available resources.” The court noted that offering extremely expensive medical treatments to everyone would make “substantial inroads into the health budget…to the prejudice of the other needs which the state has to meet.” The Constitutional Court ultimately decided that the administrators of provincial health services, not the courts, should set budgetary priorities and that the courts should not interfere with decisions that are rational and made “in good faith by those political organs and medical authorities whose responsibility it is to deal with such matters.”

Likewise, in South Africa v. Grootboom, 2000 (11) BCLR 1169 (CC), a case involving the right to housing, the Constitutional Court determined that although the state is obligated to act positively to ameliorate the conditions of the homeless, it “is not obligated to go beyond available resources or to realize these rights immediately.” The constitutional requirement is that the right to housing be “progressively realized.” Nonetheless, the court noted, there is “at the very least, a negative obligation placed upon the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing.”
Applying the rulings in these two cases to the nevirapine case, the Constitutional Court reasonably concluded that the right to health care services “does not give rise to a self-standing and independent fulfillment right” that is enforceable irrespective of available resources. Nonetheless, the government’s obligation to respect rights, as articulated in the housing case, applies equally to the right to health care services. See George J. Annas, The Right to Health and the Nevirapine Case in South Africa, 348 New Engl. J. Med. 750 (2003). For a discussion of a similar case from Venezuela see, Mary Ann Torres, The Human Right to Health, National Courts, and Access to HIV/AIDS Treatment: A Case Study from Venezuela, 3 Chicago J. International Law 1 (2002).

  1. Jonathan Mann was the first to observe that “health and human rights are inextricably linked,” Jonathan M. Mann, Human Rights and AIDS: The Future of the Pandemic, in Health and Human Rights: A Reader 216-26 (Jonathan M. Mann et al., eds., 1999), and Paul Farmer has argued that “the most important question facing modern medicine involves human rights.” Farmer noted that many poor people have no access to modern medicine and concluded, “The more effective the treatment, the greater the injustice meted out to those who do not have access to care.” Paul Farmer, The Major Infectious Diseases in the World—To Treat or Not to Treat? 345 N. Engl. J Med. 208 (2001). See also, Paul Farmer, Infections and Inequalities: The Modern Plagues (Updated ed. 1999), Amartya Sen, Development as Freedom (1999), and Laurie Wermuth, Global Inequality and Human Needs: Health and Illness in an Increasingly Unequal World (2003).

  1. Access to treatment for infection with the human immunodeficiency virus (HIV) and AIDS has been problematic in most countries, but especially in South Africa, where almost 5 million people are infected with HIV and the government’s attitude toward the epidemic has been described as pseudoscientific and dangerous. M.W. Makgoba, HIV/AIDS: The Peril of Pseudoscience. 288 Science 1171 (2000) Political resistance by the South African government to outside funders who want to set the country’s health care agenda is, of course, understandable in the context of racism and colonialism. But even understandable politics cannot excuse the government’s failure to act more decisively in the face of an unprecedented epidemic.

  1. A major concern, of course, is that the entire human rights movement could fall victim to the “war on terror.” As Richard Falk has expressed it:

By highlighting ‘terrorism’ there is an almost unavoidable tendency to perceive Issues through the lens of the September 1l attacks, and to downplay such other issues as are associated with the inequities arising from the operation of the world economy or with the practices that produce environmental decay. In these respects from the perspective of human rights’ priorities, the highlighting of the security agenda inevitably leads to a downplaying of economic and social rights, the right of self-determination, health issues, and rights associated with environmental protection. It is to be expected that academic discussions of security would take different forms in other parts of the world, that the American context of discussion is in this respect rather the exception than the rule.

Richard Falk, Human Rights: A Descending Spiral, in Human Rights in the ‘War on Terror’ 229 (Richard Ashby Wilson ed., 2005).

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