TAC Sends Letter of Demand to the Minister of Health


16 March  2004

Contents


TAC Welcomes Start of Gauteng Treatment Programme: Other Provinces Must Follow Gauteng's Lead


Minister Must Commit to Purchasing Interim Supply of Antiretroviral Medicines to Avoid Court Case


The TAC warmly welcomes the announcement by the MEC for Health in Gauteng that  antiretroviral treatment will begin for people WITH AIDS at 5 hospitals from 1 April 2004. This, together with the dates set for starting treatment at 18 other hospitals and clinics comes as a relief to people with HIV. TAC volunteers in Gauteng will now do everything they can to help the Provincial government make the programme a success and to save lives.

However, the announcement in Gauteng highlights again the need for urgency at a national level and in all other Provinces. 600 people in South Africa die of AIDS-related illnesses everyday. A study to be published in the SA Medical Journal in April shows that adult deaths on the population register have increased by 68% since 1998; most of this increase is due to the HIV epidemic. Many  of these deaths could have been prevented and many more can still be prevented by proper care and treatment. Antiretroviral treatment can help people with HIV/AIDS live longer, healthier lives. Recognising this fact, Cabinet adopted a comprehensive HIV/AIDS treatment plan on 19 November 2003 that included a target to rollout antiretroviral therapy to 53,000 people nationwide by 31 March 2004. The plan also commits to making treatment available in at least one site in every district within twelve months and at least one site in every local municipality within five years.

Yet to date there are less than 2,500 people on the programme country-wide - and nearly all of them are in the Western Cape. The National Department of Health has admitted that it will miss its target for the end of March.

TAC believes the primary reason for the failure to meet this target is the Minister of Health's lack of political will.  Her justification for delaying treatment is that the tender process for antiretroviral medicines is not complete and therefore these medicines will only be available in the public health system by the end of June.
 
The Minister acts and speaks as if she has no other options.  She does.  She is failing to make use of regulations that clearly allow Government to purchase an urgent interim supply of antiretrovirals pending the finalisation of the tender process.  She is also preventing provincial governments from accessing funds expressly allocated for the purchase of antiretrovirals until the formal tender process is completed.
 
There are hospitals and clinics that Government itself has identified as ready to rollout treatment. Some of them have thousands of patients waiting for medicines. Yet it seems the minister is prepared to let them wait and possibly die so that the tender process can finish.

The TAC National Executive Committee (NEC) has evaluated progress on the government's treatment plan. We recognise and acknowledge the work that has been done at hospitals and clinics to prepare to treat people. We recognise the work of the National Department of Health in finalising protocols, training and education. But the delay in starting the programme and providing sick people with medicines is unacceptable and unnecessary. The NEC therefore passed a resolution authorising legal action against the Minister of Health to compel her to authorise the immediate procurement of antiretroviral medicines. The TAC Secretariat met on Wednesday 10 March 2004 and, with deep regret, sent a letter of demand to the Minister (copied below).

We still hope litigation will be unnecessary. We have met with senior officials of the ANC and Department of Health to set out our concerns. However, only the Minister can avoid court action. By close of business on Wednesday, 17 March 2004, she must commit, in writing, to meeting the Constitutional rights to life, dignity and access to health-care services by authorising the urgent purchase of antiretroviral medicines and distributing them to clinics and hospitals accredited under the plan and are ready to proceed.

The TAC is working and will continue to work with a number of provincial, local and district authorities to speed up the process of implementation. We are pleased with the movement and genuine political will being demonstrated by some of these institutions, especially the Western Cape Department of Health, but also the Gauteng,  Kwazulu-Natal and, possibly, North-West Departments. In all provinces, there are hospitals, clinics and health-care workers who stand ready to treat. Although the political will of some provincial authorities is still questionable, it is our view that the cause of the delay lies primarily with the Minister of Health.

The Minister has been given seven days (from 10 March) to respond to our letter of demand failing which we will proceed with legal action. Thousands of lives are at risk and there is every reason for the Minister, if she has any compassion, to meet our reasonable demands.

[END OF STATEMENT - BACK TO CONTENTS]

Letter of Demand Sent to Minister of Health


Dr ME Tshabalala-Msimang
Minister of Health
Private Bag X399
PRETORIA
0001

URGENT

Per fax:
(012) 325-5526 and
(021) 465-1575

Dear Dr Tshabalala-Msimang

URGENT PROCUREMENT OF ANTIRETROVIRAL DRUGS - IMPLEMENTATION OF OPERATIONAL PLAN FOR COMPREHENSIVE HIV AND AIDS CARE, MANAGEMENT AND TREATMENT FOR SOUTH AFRICA

1 We act on behalf of the Treatment Action Campaign (TAC).

2 We refer to our client's letter dated 20 February 2004, a copy of which is attached marked annexure "A" to which we have not yet received a response.

3 The TAC has welcomed the release of the Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa (the Plan) approved by the Cabinet during November 2003. As you are aware, the Plan constitutes the implementation by the Government of its decision to make antiretroviral (ARV) medicines available to people living with HIV/AIDS who are in need of ARV treatment.  It also makes provision for a plan to procure and provide these medicines.

4 Implicit in the Plan is the need for urgent supplies of ARVs to accredited sites. Our client's concern in this respect was raised in its letter to Dr Zokufa dated 3 February 2004, a copy of which is attached marked annexure "B" to which we have not yet received a response. That letter records that the Plan does not expressly provide for its immediate implementation in a reasonable manner within the State's available resources, so as to ensure that there is provision for and access to a supply of ARV medicines to meet urgent interim needs. Our client also expressed its concern about the lack of urgency on the part of the drug procurement team in taking appropriate steps to ensure that the procurement of ARV medicines meets the short, medium and long-term needs of the Plan.

5 The result of this is that Government has committed itself to a lengthy tender process as the only mechanism for procuring ARV medicines.  The Plan provides for a tender process which will take some time and which is already behind schedule. Regrettably, the Plan fails to make express provision for interim procurement. It makes no express provision for the immediate and urgent procurement of ARV medicines and the prescription and supply of these medicines to persons with a CD4 count below 200 and/or persons with very low CD4 counts and/or persons who have already contracted a WHO defined stage IV illness, during the interim period between the date of approval of the Plan, and the finalization of the tender process.

6 In this respect, we bring the following to your attention

6.1 On 8 August 2003, Cabinet released a statement indicating that it had considered a report of the joint Health and Treasury Task Team on treatment options to enhance comprehensive care for HIV/AIDS in the public sector. As a result, Cabinet instructed the Department of Health, as matter of urgency, to develop a detailed operational plan on an ARV treatment programme

6.2 On 19 November 2003 Cabinet approved the Plan (referred to in paragraph 2 above);
 
6.3 The Plan identified facilities that would be ready to deliver ARV treatment by the first quarter of 2004.

6.4 On 13 February 2004, some two months after Cabinet approved the Plan, the Department of Health issued a notice published in the Tender Bulletin (Vol. 464 Pretoria, 13 February 2004 No. 2315) inviting firms and consortia to submit expressions of interest regarding the supply of ARV medicines.

6.5 The deadline for submitting written expressions of interest was 27 February 2004.

6.6 According to the notice, a briefing session was to be held on 9 March 2004, where invitees would have been provided with documentation on the Request for Proposals (RFP).  

6.7 At a briefing to the National Assembly Portfolio Committee on Health (the Portfolio Committee) held on 24 February 2004, the Department of Health (represented by inter alia Dr Chetty, Dr Simelela and Dr Zokufa) indicated that the procurement process is likely to be completed towards the end of June 2004.

6.8 According to them, contracts for each of the ARV medicines on tender are expected to be issued in the last week of May 2004, with the delivery of medicines taking place two to three weeks later in June 2004.  A copy of the relevant slide of the presentation is attached marked annexure "C".

6.9 It is clear from the remainder of the parliamentary briefing that no provision has been made for the urgent interim procurement of ARV medicines. The Plan fails to provide for the procurement of ARV medicines and the provision thereof to those persons whose lives depend upon urgent access to these medicines, in the period between approval of the Plan and the eventual procurement and supply of ARV medicines. 

6.10 The lack of any provision for the interim procurement of ARV medicines has resulted in at least one province having no option but to procure ARV medicines using donor money and money from other programmes, as it is legally entitled to, until such time that the tender process is completed and contracts are accordingly awarded. 

6.11 The failure to procure ARV medicines to meet urgent interim needs means that sites that Government itself has identified as having the capacity to provide ARV treatment safely and effectively in the interim, cannot do so because no ARV medicines have as yet been procured.       
 
7 Our client is aware of the need to have a comprehensive and transparent procurement process that is in accordance with the appropriate regulatory framework that governs state tenders.

8 A commitment to such a formal tender process does not justify denying access to treatment in the interim for those in urgent need, where the capacity to treat such persons in the public sector already exists.  

9 We note that the Plan has identified several ARV medicines that will be used for purposes of treatment. Of the medicines that have been identified, we note that:

9.1 Government is already procuring some of the medicines that have been advertised for its post-exposure prophylaxis and mother-to-child transmission prevention programmes;

9.2 Of the nine ARV medicines advertised by government for tender, four have a single supplier; and 

9.3Potential suppliers of the advertised medicines identified themselves by 28 February 2004 already.
 
10 Our client also notes that accredited health establishments and assessed health establishments, all of whom have the capacity and capabilities to implement ARV treatment have also already been identified. In this respect, the department was to have provided an accreditation report to a MinMEC meeting on 27 February 2004. We note that to date this report has not been made public. 

11 We are instructed that a mechanism that provides for urgent interim access to ARV medicines is a reasonable measure within the capabilities of the Government. We are also instructed that the Government has at its disposal procurement mechanisms that comply with the prevailing regulatory framework and that can be used to procure ARVs in the interim. Below we set out these mechanisms. 

12 The Regulations dealing with Supply Chain Management which came into effect on 5 December 2003, as well as Practice Notes and Guides issued by the National Treasury provide that an accounting officer/authority (or a person duly delegated) can procure goods without having to tender in cases where it is impractical to do so. For example, 

12.1 In urgent cases or where there is a single supplier, an accounting officer is permitted to procure goods through other means such as price quotations and negotiations.  In this respect, our client would like to draw your attention to regulation 6 (4) of the 'Framework for Supply Chain Management' Regulations issued in terms of the Public Finance Management Act 1999. 

12.2 In addition, our client would also like to draw your attention to paragraph 3.3 of Practice Note Number SCM 2 of 2003 issued by the National Treasury on 5 December 2003.

12.3 Also, our client would like to refer you to paragraphs 4.7.5, 4.7.7 and 4.7.8 of the 'Supply Chain Management Guide for Accounting Officers/Authorities' issued by the National Treasury in February 2004.
 
13 There is consequently no rational, reasonable or lawful basis for the failure to take appropriate steps urgently to procure ARV medicines, on an interim basis, pending the finalisation of the tender process.

14 The failure to make such provision will result, in particular, in irreparable medical harm to and/or the premature deaths of people living with HIV/AIDS in situations where this is both predictable and avoidable.   

15 The state is under a constitutional duty to respect, protect, promote and fulfil the rights set out in the Bill of Rights, particularly the duty to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of these rights, and also the rights to equality, life, dignity, access to health-care services, the right of children to basic health care services and bodily and psychological security.
  
16 The state is also under a duty to respect its international obligations.

17 Finally, the provisions of the Promotion of Administrative Justice Act 2000 must also be complied with.

18 Our client therefore believes that the failure to procure ARV medicines to meet urgent interim needs is in breach of the state's duty to make provision for urgent interim procurement of and access to ARV medicines.  It also infringes the right of access to health care services of those in urgent, desperate need of ARV medicines in the period between approval of the Plan and the procurement and supply of ARV medicines.

19 In addition, our client is concerned that as of 1 April 2004, provincial conditional grant allocations for the purchase of ARV medicines appear to be restricted to the purchase of medicines procured only in terms of the national tender process. This will mean that provinces will not be able to use the money until the tender process is completed. We understand that provinces would be eager to make use of such funds immediately for purposes of urgently procuring ARVs prior to the finalisation of the tender process, that is, to satisfy interim needs.

20 In the circumstances we are instructed to demand that within seven calendar days of the date of this letter that you undertake:

20.1 To use the alternative mechanisms available for the procurement of ARV medicines on an urgent basis pending their availability pursuant to the finalisation of the tender process; and/or

20.2 That you will by no later than 31 March 2004 authorise provinces to use their 2004/2005 conditional grant allocations to procure ARV medicines immediately and directly from suppliers pending the finalisation of the tender process.

21 If you decline to accede to either or both of the afore-going demands, our client requests that you provide written reasons for your refusal within seven calendar days of the date of this letter.

22 Kindly note that if we do not receive a satisfactory response within seven calendar days of receipt of this letter, our client will apply for the appropriate relief to a Court. We sincerely hope that this will not be necessary.  


Yours faithfully


Fatima Hassan
Attorney
Law & Treatment Access Unit
AIDS Law Project


CC:
Per fax:
1 PREMIER, EASTERN CAPE       
2 PREMIER, FREE STATE           
3 PREMIER, GAUTENG           
4 PREMIER, KWAZULU-NATAL
5 PREMIER, LIMPOPO            
6 PREMIER, MPUMALANGA
7 PREMIER, NORTHERN CAPE
8 PREMIER, NORTH-WEST       
9 PREMIER, WESTERN CAPE   

[END OF LETTER OF DEMAND - BACK TO CONTENTS]

Letter to Minister Manto Tshabalala-Msimang

20 February 2004

Dr Manto Tshabalala-Msimang
Minister of Health
Private Bag X399
PRETORIA
0001

And per fax: (012) 325 5526


URGENT 


Dear Minister Tshabalala-Msimang

RE: ANNEX A.1 AND A.2 TO THE OPERATIONAL PLAN FOR COMPREHENSIVE HIV AND AIDS CARE, MANAGEMENT AND TREATMENT FOR SOUTH AFRICA

We welcomed the release of the Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa' ('the Plan'). The Plan is the culmination of a number of policy and other developments over the last few years. We therefore support the commitment by government to make life saving treatment available to those people living with HIV/AIDS who are in need of antiretroviral treatment. 

Increased illness and premature avoidable deaths from AIDS-related illnesses requires the urgent, immediate and reasonable implementation of the plan to rollout antiretrovirals in order to improve the quality of life and to save the lives of people living with HIV/AIDS.  Access to information about patient targets, time-lines and tasks / activities will allow community organisations and the broader public to assess the progress of the Plan and to assist government with the reasonable implementation of the Plan where any gaps may exist.

We are encouraged that several Annexes to the Plan (Annexes to the Executive Summary and Chapters I; IV; V; XI; XIII; XIV; XV) are publicly available. However, in light of the urgency that is required to implement the Plan in a reasonable manner, we are worried that Annexes A.1 and A.2 have not, as yet, been made publicly available some three months after the Plan was finalised and presented to the Cabinet and publicly released. 

We would therefore like to request copies of Annex A.1 (week by week schedule for the pre-implementation period) and Annex A.2 (Detailed Implementation Plan).  Both Annexes are referred to and identified in the Plan (referred to at paragraphs 135 - 136, page 51, Executive Summary). Of course, if either Annex has been amended since the Plan was first released, we would appreciate copies of the original as well as any subsequent amended version(s).

It is important that community organisations and the broader public have access to Annexes A.1 and A.2 because according to the Plan, they contain detailed information relating to the implementation of the Plan: First, it appears that Annex A.1 contains information about pre-implementation tasks and includes a weekly schedule for the pre-implementation period. Second, Annex A.2 entitled the 'Detailed Implementation Plan' appears to set out the tasks that have to be completed in each stage of the Plan for each area of activity (in other words, a list of tasks that have been identified relating to the implementation of the Plan). Even though the general target timelines are reflected in the Plan at page 10, Annexes A.1 and A.2 are not attached to the Plan or publicly available as yet.

We trust therefore that you will provide us with copies of Annexes A.1 and A.2 by 25 February 2004.

In addition, we would also like to have a meeting with your offices to discuss, in particular, the issue of reasonable timelines in so far as the implementation of the Plan is concerned.

We hope that we can arrange to have a meeting by no later than the end of February 2004. We look forward to a constructive meeting where we will be able to discuss key aspects of the implementation of the Plan in greater detail.  We hope that all the members of the Strategic Management Team (SMT) will be able to attend the proposed meeting as well. Of course we are willing to meet on a date, time and venue that is convenient for you.

We look forward to hearing from your offices shortly.

Yours sincerely



Zackie Achmat                         Sipho Mthati
Chairperson                         Deputy Chairperson

[END OF LETTER TO MINISTER OF HEALTH - BACK TO CONTENTS]

Letter to President Mbeki


20 February 2004
President Thabo Mbeki
Private Bag X1000
CAPE TOWN
8000

And per fax: (021) 462 2838 and (012) 323 8246
 
URGENT 

Dear President Mbeki

OPERATIONAL PLAN FOR COMPREHENSIVE HIV AND AIDS CARE, MANAGEMENT AND TREATMENT FOR SOUTH AFRICA

The Treatment Action Campaign (TAC) welcomed the release of the Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa' ('the Plan') in November 2003. We view the Plan as a practical and achievable vision, which if implemented urgently and reasonably, will save the lives of many thousands of people living with and affected by HIV/AIDS. It will also bring about improvements in the general quality of care and service in our public health system.

The plan estimates that up to 500,000 people are in immediate need of life-prolonging antiretroviral (ARV) medicines. It recognizes that its urgent, diligent and immediate implementation in a reasonable and defensible manner is necessary to improve the quality of life and prolong the lives of people who need ARVs. This is in accordance with the Cabinet statements of 8 August 2003 and 19 November 2003 - both of which TAC has publicly supported and welcomed.

We have already written to the Minister of Health as well as to the MECs for health in all the provinces. We have offered them our assistance with the implementation of the Plan.

The successful implementation of the Plan depends heavily on unambiguous leadership. In this respect, the Office of the Presidency plays an important role in ensuring that the public does not receive mixed messages about the aims and objectives of the Plan, its implementation, the science of HIV/AIDS and the use of antiretrovirals. We therefore request an opportunity to meet with you.

The TAC has met with the Deputy President in his capacity as the Chairperson of SANAC.  The critical situation that is presented to us by this national health emergency must receive the open direct and unambiguous support of your office.


Regretfully, on several occasions, our requests to meet with you have been declined.   In regard to the nature of time critical elements affecting execution of the Plan, we are hopeful that we will be given an opportunity to meet with you before the next general election on 14 April 2004.  We therefore urge you to recognise the TAC as a genuine and legitimate partner in preventing and treating HIV/AIDS and creating a People's Health Service. We are committed to ensuring that people's lives are saved through the successful implementation of the Plan.


We hope to hear from your offices as a matter of urgency.

Yours sincerely

Zackie Achmat                         Sipho Mthati
Chairperson                         Deputy Chairperson

Mandla Majola                         Mark Heywood
National Secretary                     National Treasurer

[END OF LETTER TO PRESIDENT - BACK TO CONTENTS]

Letter  Sent to South African National AIDS Council (SANAC) Regarding Confusing and Damaging Allegations Made by AIDS Denialist David Rasnick about President Mbeki


ATT: SANAC Secretariat

By Fax: 012 312 3122

18th February 2004



Dear Secretariat

Attached is a letter from David Rasnick which recently appeared on the
web-site of the British Medical Journal.

In the letter Mr Rasnick claims to still be a member of the Presidential
AIDS Panel and makes a number of confusing and damaging allegations about
the views of our President and the November 2003 Operational Plan.

At the forthcoming workshop of SANAC on February 27 & 28 please could we be
informed:

1.      What the relationship of the Presidential AIDS Panel is to SANAC?

2.      What the current status of the Presidential AIDS panel is?

3.      Whether the allegations made by Rasnick are true, and, presuming
that they are not, whether SANAC can publicly refute them.

Yours sincerely

M J Heywood

Law and Human Rights sector


Here is Rasnick's Letter (Dated 23 November 2003) to the Online BMJ

Dear Editor,

Ed Rybicki chose not to refute any of the facts or arguments I have presented regarding the lack of evidence for the contagious/HIV hypothesis of AIDS. He merely recites the catechism of AIDS dogma. In addition, he doesn't check his facts. He says, "And yet again, despite its dissolution at least 18 months ago, [Rasnick] claims to be 'Member of the Presidential AIDS Advisory Panel of South Africa'".

I am indeed still a member of the Presidential AIDS Advisory Panel because it has not been disbanded. Just weeks ago, in fact, president Mbeki said publicly that he is still waiting on this very panel to conclude its deliberations and present a report on its findings.

Prior to the recent Cabinet decision to make anti-HIV drugs available throughout South Africa, on the eve of the 53rd Session of the World Health Organization's Regional Committee for Africa convened in Johannesburg, September, 2003, Mbeki posed these questions to the 37 Ministers of Health and delegates from 46 African countries: "Do we know what is it that is killing the people of Africa? Do we have a good sense of the health challenges facing them? And are we therefore in a position to conceptualise strategies and advise African Heads of State and Government on appropriate responses?"

The Cabinet's decision on the anti-HIV drugs was not the president's. He has not changed his mind on those drugs. If Rybicki had read the Cabinet's decision, he would have seen that inclusion of the anti-HIV drugs was a minor component of the comprehensive plan to beef-up the healthcare infrastructure throughout SA. However, this is not reported in newspapers. Mbeki's government is using the hoopla around HIV drugs to improve healthcare generally. One benefit of all the fuss around the Cabinet's decision is that AIDS will most likely not be a campaign issue in the upcoming national elections early next year. Mbeki's second term in office will be very interesting.

David Rasnick, PhD

Member of the Presidential AIDS Advisory Panel

Competing interests: None declared

[END OF LETTER TO SANAC - BACK TO CONTENTS]

[END OF NEWSLETTER]