4 April 2002 Julian Meldrum SA court supports doctors' right to give nevirapine while hearing awaited.
The South African Constitutional Court has upheld an interim order from a court in Pretoria, requiring that nevirapine should be provided to prevent mother-to-child transmission of HIV, wherever present clinical circumstances would allow this.
This judgment, delivered by Chief Justice Arthur Chaskalson, does not require immediate provision of nevirapine to all pregnant women with HIV. However, it should prevent South African health ministers from taking action against individual doctors and clinics who decide that they can and should provide nevirapine as part of their duty to care for their patients.
The main issue, which is whether the courts have the right to intervene in health policy on human rights grounds, is still subject to an appeal to the South African Constitutional Court by the Federal Health Minister and eight Provincial Health Ministers, and is due to be heard on 2 May.
The Constitutional Court has already indicated that it will not confine itself to a narrow constitutional view of the issue, by asking both the governments and the treatment activists who originally took them to court to submit evidence on the case for or against full-scale provision of nevirapine.
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12 March 2002 SA Government Ordered HIV Drug Provision to Mothers By Michael Carter
South African govt ordered to provide HIV drug to mothers now
The High Court in Pretoria yesterday (11 March) ordered the South African national and provincial governments to provide nevirapine to all HIV-positive pregnant women for prevention of mother to child transmission.
Judge Chris Botha reiterated the High Court ruling of December 2001 which mandated the South African authorities to provide nevirapine, a ruling which the government appealed, questioning the validity of the court's ruling. Although Judge Botha will allow the appeal to go to South Africa's Constitutional Court, he ruled that nevirapine must be made available to all HIV-positive pregnant women at public health facilities "with the capacity for testing and counselling", while the appeal is pending.
In his hard-hitting ruling Judge Botha said that he believed that the government's appeal was "unlikely" to prove successful, adding that they would, at most, be granted a modification on the original order. If the government's appeal were to prove successful he said that they would have suffered little more than "inconvenience", which "ethically motivated health workers will gladly assume."
However he added that should he suspend the original order to provide nevirapine and the government case were to fail "it is manifest that it will result in the loss of lives that could have been saved. It would be odious to calculate the number of lives that one could consider affordable in order to save [the government] the sort of inconvenience they foreshadow. I find myself unable to formulate a motivation for tolerating preventable deaths for the sake of sparing [the government] prejudice that cannot amount to much more than organisational inconvenience."
So far the South African government has only provided nevirapine to HIV-positive pregnant women at 18 state hospitals as part of a trial, a policy which is now looking unsustainable, particularly as a government-commissioned report published last week said that nevirapine programmes in state-run health facilities were viable and should be commenced nationwide as soon as possible.
Nevertheless a health ministry spokesperson reacted to Judge Botha's ruling saying: "If [Judge Botha] says we should implement without support mechanisms, it is a matter of concern" adding that the 18 pilot sites had experienced problems in the administration of the drug.
Treatment activists have welcomed the ruling, with a spokesperson for the Treatments Action Campaign saying "We believe that Judge Chris Botha has put morality back into law and policy by putting people's lives first."
Excluded from the ruling are the governments of Western Cape and KwaZulu- Natal which already supply nevirapine at public health facilities. Three other provincial governments have also declared declared their intention to initiate nevirapine programmes.
Source: AIDSMAP 12 March 2002 http://www.aidsmap.com/news/newsdisplay2.asp?newsId=1410
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