EXCERPT FROM JUDGMENT TAC AND OTHERS V MINISTER OF HEALTH AND OTHERS "Against this background I shall now deal with the issue of whether the respondents have fulfilled their constitutional obligations in terms of section 27(2). "Section 27(2) clearly presupposes a situation where there is not yet a full realisation of the right to health care. No doubt that is in recognition of a host of historical and socio economic realities. It equally imposes the duty to achieve a progressive realisation of the right to health care as an ongoing obligation. It obviously does not impose the duty to achieve the realisation of access to health care overnight. The pace is dictated by a vailable resources. Yet, in my view the inexorable goal is a realisation of the right, even through it may be achieved progressively. "What is in issue in this case is not the general implementation of health care. This case concerns merely an aspect of it, namely a programme for the prevention of MTCT of HIV. Although it is only a facet of health care. This case concerns merely an aspect of it, namely a programme for the prevention of MTCT of HIV. Although it is only a facet of health care, in view of what is at stake, it is a very important aspect of health care. "Mr Marcus conceded, correctly I think, that there is nothing wrong per se with a gradual geographical roll out of a comprehensive programme of health care relating to MTCT. It is in keeping with the duty to provide achieve a progressive realization of the right to health care within the state's available resources. "In that context I am also of the view that the respondents cannot be faulted for having decided to establish two research and training sites, or pilot sites, in each province. With a recently registered drug it cannot be denied that it is a prudent precaution to have centers where track is kept of its performance so that counter-indications can be picked up. "Furthermore the research and training sites also provide valuable information about the logistical and operational problems that can be encountered in the implementation of a programme for the prevention of MTCT of HIV. "Having said that, it must not be forgotten that the phased implementation of a health care programme is discriminating, that it causes inequality and that it denies access to those who find themselves outside the reach of the sites where implementation is being effected. "Much was made of the conditional registration of Nevirapine and its possible side effects. The evidence was that the side effects are associated with long-term use, not with the once-off use for the prevention of intrapartum MTCT of HIV. The evidence was also that the mutations that lead to resistance are transient and disappear when Nevirapine is not longer in the body. "The evidence is also that the conditional registration, or accelerated registration, is a mechanism to make a drug immediately available where the available evidence is that it is safe and efficacious. It is a procedure that is resorted to where the health authorities are faced with a crisis of the first magnitude, such as HIV/AIDS. The approach is to provide the public with immediate access to the drug for the good it can do whilst at the same time imposing conditions to ensure the collection of long term data relating to its effect. In view of all this evidence there is in my view no justification to suggest, if there is such a suggestion, that Nevirapine should not be made generally available to the South African public because of its conditional registration or because of reservations about side effects or resistance. It can be made available for general use. The fact that its use may have to be monitored does not detract from the fact that it is available for general and large scale use. "Another subject that enjoyed much attention was breast feeding. Dr Ntsaluba stated that it would be irresponsible for the first to ninth respondents to make Nevirapine available in the entire public sector where it is common knowledge that a percentage of babies who are born HIV negative subsequently become HIV positive as a result of breast feeding. The point is that if a baby is born HIV negative because Nevirapine was administered during delivery and subsequently becomes HIV positive as a result of breast feeding , it is the breast feeding, and not the Nevirapine that has caused him to become HIV positive. It would be irresponsible to administer Nevirapine to the mother without counseling her as to the risks of breast feeding. As it is, the evidence shows that breast feeding does not necessarily reverse the effect of an intrapartum application of Nevirapine. It is of note that according to dr Guay the Ugandan study was conducted in a breast feeding population without substitute feed being made available. According to a study cited by Dr Wood and apparently accepted by dr Ntsaluba, the avoidance of breast feeding can reduce MTCT by 44%. Obviously, to optimize the effect of Nevirapine, or rather to avoid reversals, it is the better option to provide formula food for those mothers who are prepared not to breast feed, but who cannot afford formula feed. That is also why it is quite correct that where the respondents have implemented a programme for the prevention of MTCT of HIV, they have done so with formula feed as part of the package. All that does not mean, however, that before full implementation, it would be irresponsible after proper counseling, to prescribe Nevirapine without the availability of formula feed. "I shall now deal with the relief claimed in prayers 1 and 2. "There is in my view incontrovertible evidence that there is a residual or latent capacity in the public sector outside the 18 pilot sites to prescri be Nevirapine. The experience in the Western Cape is evidence of it. Dr C ook testified to it in relation to the Johannesburg Hospital. Dr Grant tes tified to it in respect of a rural hospital in KwaZulu Natal. The suggesti on that he is in favour of prescribing Nevirapine to women regardless of th eir HIV status is wrong. He merely cited an Africa Centre report which sug gested it as a cheaper alternative. Further support of the residual capaci ty in the public sector to prescribe Nevirapine is to be found in the affid avits of nurses Matebula and Mahlonoko. The evidence of the number of hosp itals in the provinces also points to such a capacity. Then there is the e vidence of prof Schneider which cannot be denied. The very fact that in Ga uteng it was possible to effect such a rapid extension of the programme sho ws that there is an existing capacity that can be harnessed. "The arguments against allowing doctors in the public sector to prescribe Nevirapine are mainly that it would throw the system in disarray, that it w ould cause budgeting distortions, and that it would set a precedent for the prescription of expensive drugs for the most esoteric conditions. I canno t agree with these arguments. We are not concerned with the prescription o f an expensive drug. Its cost is minimal, if it is to have a price at all. If the respondents are ordered to make it available, it enters, as it wer e, the Essential Drug List, and its prescription can s