KEY ELEMENTS OF A TREATMENT PROGRAMME WHICH IS
CONSISTENT WITH THE CONSTITUTION

1	The Constitution requires the state to take reasonable measures, within its available resources, to achieve the progressive realisation of the right of access to health care services.

2	The courts recognise that there is a range of measures which will meet the requirements of reasonableness.  It is for the government to decide which of those measures to adopt.  However, in S v Makwanyane the Constitutional Court also recognised that ‘death is different’.  The range of what is acceptable is affected where the consequence of a particular policy is a failure to prevent avoidable death (TAC 72, 93), particularly where there is a pandemic (TAC 93)

3	The requirements of reasonableness include the following:

3.1	co-ordination between different spheres of government, allocating appropriate responsibilities to each (Grootboom 39-40)

3.2	a comprehensive and coherent programme (Grootboom 40-41)

3.3	national government must ensure that obligations are met, ie oversight role (Grootboom 40)

3.4	the programme must be capable of facilitating the realisation of the right (Grootboom 41)

3.5	policies must be reasonable both in their formulation and in their implementation (Grootboom 42)

3.6	policies must be flexible (Grootboom 41, TAC 68)

3.7	appropriate provision for short, medium and long-term needs (Grootboom 43)

3.8	not exclude a significant segment of society (Grootboom 43, TAC 68)

3.9	those whose needs are most urgent must not be ignored by long-term programmes (Grootboom 44, TAC 68); the programme must respond to the needs of those who are most desperate (Grootboom 44)

3.10	research and training programmes must not result in withholding treatment from those who do not have access to the research and training sites (TAC 68)

3.11	transparency (TAC 123)

3.12	the court will have regard to WHO guidelines in determining what is appropriate (TAC 12, 60)

3.13	Government and non-governmental agencies will perforce have to join in combating the common enemy (TAC 20)

4	The requirement of progressive realisation has two elements: the programme must be progressive in two senses:

4.1	by increasing, over time, the number of people who are served (Grootboom 45)

4.2	by increasing, over time, the quality of the services provided (Grootboom 45)

5	Applying these principles to a treatment programme, the following elements emerge:

6	Those parts of the programme which can be made available, must be provided where this is feasible, even where the full programme is not immediately available (progressive).  Thus, CD4 tests should be made everywhere possible, even if ARV treatment is not yet available.  This will enable other steps to be taken (eg treatment for opportunistic infections; directing patients to other sites where appropriate) even where the site is not yet able to provide ARVs.

7	Sites should be able to identify themselves as being ready to provide treatment on whatever scale they can manage (flexibility - avoiding ‘missed opportunities’)

8	Those areas where the need is most pressing (prevalence and poverty) should be identified through the ante-natal survey (urgent/desperate needs).  The programme must provide for the following:

8.1	where they have capacity, they must proceed, and be assisted to scale up (progressive)

8.2	where they don’t have capacity, there must be a programme for developing it

9	If further research is going to be done, provision may not be limited to those sites: treatment may not be withheld from people who do not have access to those sites (flexibility; urgent needs)

10	Every district which can not provide treatment should have a referral point from which people can be referred to other sites which can provide treatment (flexibility; address short-term needs).

11	If patients at sites without ARVs can pay for treatment themselves, public health professionals must prescribe ARVs for them, and provide monitoring and support or refer them to facilities which can provide these services (flexibility)

12	While Elisa is the most effective test, where this is not available, then other rapid tests must be used (progressive; flexibility; short-term measures);  WHO guidelines should be given full weight.

13	Co-operation is necessary with non-governmental agencies which are able to assist in dealing with this emergency.

14	National government must require provinces to report on their implementation of these policies, and must ensure that they comply with their obligations.

[ENDS]