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2 March 2004 Mechanisms for Minister of Health to Purchase Emergency Interim Supply of Antiretroviral MedicinesCONTENTS
Brief Explanation of How the Minister of Health Can and Must Immediately Procure Antiretroviral Medicines for the Treatment RolloutThe Minister of Health's response to Sindiswa Moya (Sunday Times, 22 February 2004) condemns to ongoing illness and possible death many people in a similar situation to Moya by insisting that the start of treatment rollout must wait for the antiretroviral tender to finish, a process which could take several months. The Minister's letter contains a number of inaccuracies, but here we specifically address issues related to the procurement of medicines. Transparent procurement processes are lengthy, but if there was a sense of urgency the invitation to express an interest to tender could have been made much earlier than February. Initial work by the Treasury and Health Department on costing a treatment plan began in September 2002; putting out a tender for essential medicines should not have been left this late. Nevertheless, even with the process only starting in February, tender regulations allow for the purchase of an interim supply of antiretrovirals so that treatment can begin while the tender process is being completed. One such mechanism is known as the "provincial direct buy out". The Western Cape goverrnment has used this, which is why it is currently treating nearly 2,000 people. No other province has followed this example .
Another mechanism is to use the flexibilities of the tender regulatory farmework that permit the Minister to purchase medicines to meet urgent needs without having to tender. Where it is impractical to tender or follow bid processes - because of the urgency involved - there is no need to adhere to formal and lengthy tender processes. Also, where applicable, the state tender board can provide ex post facto ratification for the purchase of goods in urgent circumstances.
There is therefore nothing in our law that prevents our government from purchasing an interim, urgent supply of ARVs up until such time that the tender process is completed, which according to the Department is only likely to be June 2004. Here too, the regulatory framework permits the procurement team to shorten the advertising of applicable notice periods. Finally, the Minister's department can use the R90 million allocated to it for purchasing ARVs before the end of March 2004.
The Minister raises the concern that "if we do not follow these public finance rules, we may be dragged to court, accused of unfairness or favouring one company over another". This is unwarranted as explained above, but any supplier that risks taking government to court for saving lives would face the wrath of the South African public. The hospital that Sindiswa Moya attends, Helen Joseph, is one of many that has most of the resources it needs, except the medicines, to treat patients in immediate need of antiretroviral therapy. The hospital already treats people who pay for their own antiretrovirals, either directly or via sponsors. Some hospitals and clinics around the country that are ready to treat were identified in the Cabinet approved treatment plan. The Minister must immediately ensure that they are stocked with medicines. Otherwise she is indeed likely to be taken to court - but for violating the Constitutional rights to life, dignity and providing health-care. The argument by the Minister of Health in her response to Sindiswa Moyo that 'processes have to be followed' and that government 'could face legal action unless they follow the law to the letter' is therefore incorrect. There is clearly room for flexibility in cases of urgency. The Minister can use the R90 million allocated by Treasury in the October budget to purchase an emergency interim supply of antiretrovirals as well as any other critical resources needed to start treatment programmes at health facilities that are otherwise ready to proceed. The legislature could not have reasonably contemplated a law that precludes government from procuring goods/services in urgent circumstances (for example, purchasing medicines for a SARS outbreak). [END OF PROCUREMENT EXPLANATION - BACK TO CONTENTS] Drug Procurement Timetable / ActivitiesThe timetable below was part of a presentation made to the Parliament Portfolio Committee on Health by Dr Nono Simelela on . For the first time it indicates that antiretroviral medicines will not be made available to health facilities before July 2004, almost one year after Cabinet approved the joint Treasury/ Health Task Team report in August 2003.
[END OF PROCUREMENT EXPLANATION - BACK TO CONTENTS] Open Letter to President Mbeki by Sindiswa Moya(From Sunday Times, 15 February 2004)Dear Mr President My name is Sindiswa Patience Moya and I have reached an advanced stage of Aids, as my last CD4 count of 33 shows. I am 34 and I live in Dobsonville, Soweto. I am a patient at the Helen Joseph HIV clinic in Johannesburg. I need antiretroviral drugs but the clinic does not yet have them and I cannot afford to buy them. I was in and out of hospital last year with TB and pneumonia. I will complete my TB treatment next week, however, my immune system is weak and I am running out of time. In 2000 my late boyfriend was sick and I got swollen glands. In May that year I went into hospital and found out that I was infected by HIV. I was counselled after I tested positive and was sent home with no medicines. I was scared as my boyfriend was very sick and I wanted to take antiretroviral treatment. I was a policewoman and everyone found out I was HIV positive at work and then I resigned. In 2001, I took antiretrovirals and I did not have any side effects. But when I ran out of money I could not buy the drugs and I stopped treatment. I knew I was not supposed to stop and I did not want to. When the drugs are available in hospitals and clinics no patients will have this problem. My boyfriend passed away in December 2001 and I felt afraid that when I stopped treatment I would get sick, and I did. In March last year I went to Helen Joseph Hospital with fever, vomiting and diarrhoea. I was treated as an outpatient for pneumonia. In June I was admitted to hospital and in July I started TB treatment. Last year I was very sick and I moved in with my sister who looked after me. I was referred to the HIV clinic at Helen Joseph, where I got counselling and started to attend the wellness group. This made a difference as I knew I was not alone. In October I started to get a disability grant, of R700 a month. This is not enough money to buy antiretrovirals and I need them now as my CD4 count is very low. Please will you give the HIV clinic these drugs. [END OF OPEN LETTER FROM SINDISWA MOYA - BACK TO CONTENTS] Open Letter to Sindiswa Moya from the Minister of Health(From Sunday Times, 22 February 2004)Dear Sindiswa Patience Moya, The Office of the President has referred your letter to me as the minister of health. It is with deep regret that I hear of the situation you face. Your letter once again brings forth the reality of having to deal with a major disease that has no cure. It reminded me of different accounts I have heard from Thanduxolo Doro, Nkululeko Nxesi (of the National Association of People With HIV and Aids), Mercy Makgalemele and many other people living with HIV and Aids. Two days before your letter was published, the Department of Health had called on suppliers to indicate their interest in supplying antiretroviral drugs for this programme. Because we are using public funds, the tender regulations specify that these companies should have a period of two weeks within which they can write to us. They will then be briefed on the kind of antiretroviral drug we need to provide to you and other people with Aids. Their proposals in providing these drugs will be short-listed and tenders will be awarded to those that qualify. It may sound long, but if we do not follow these public finance rules, we may be dragged to court accused of unfairness or favouring one company over another in offering this multimillion-rand tender and that will delay the delivery of these services even further. We also have to ensure a reliable drug procurement and distribution system, so that your clinic does not run out of drugs and put your life in danger. You may ask why we did not go through this process some years ago to make these drugs available to you as soon as possible? I also wish we were able to implement all the elements of our comprehensive response to HIV and Aids as soon as we came from the previous government that never had a programme on HIV and Aids. Unfortunately, until less than two years ago, antiretroviral drugs were being sold at an excessively high price, causing many people to run out of funds and [to be] forced to stop treatment. We have tried our best through various local and international forums to get the pharmaceutical companies to reduce the prices of medicines. The Medicines and Related Substances Control Amendment Act that we passed in 1997 to improve access to affordable medicine was blocked by drug companies through a legal action for more than four years. It is only in May this year that we could reduce the prices of all medicine by 40%-70%. Despite all the hurdles we have to overcome, we are determined that you and many other people living with HIV and Aids get a comprehensive package of care. We have visited your hospital, Helen Joseph, and many other facilities in all 53 districts of the country to assess their capacity to provide these services. Urgent action will be taken to assist those facilities where gaps have been identified. Our objective is to have one service point in all districts by the end of the year to ensure that people in similar circumstances are able to access these services. We have developed training manuals to ensure that the health workers who attend have the necessary expertise. Treatment protocols are being finalised to enable us to provide the same quality care in all service points. A standard electronic patient record system has been developed to ensure that even if you were to leave the Johannesburg metropolitan area, you can get correct treatment in any other district or province. Laboratory services are being extended to enable all service points to have easy access to CD4 count, viral load, liver function and other tests needed to evaluate the progression of the disease and the impact of the treatment. Since you have taken antiretroviral drugs before, we will have to evaluate you through these laboratory services to determine the appropriate treatment as you may already be resistant to some of the drugs. I am glad that you make an undertaking to take your medication appropriately and continuously. We need to send this message to all people who are infected so that they all understand that not following medical advice will damage their health and require that we put you on a more expensive treatment. We are therefore engaging in a major social mobilisation and communication campaign to ensure that everybody follows your good example. We are also procuring nutritional supplements and micronutrient tablets to support the nutritional status of people with HIV and Aids. Many people who require drugs also do not have anything to eat because they have become too weak to generate their own income. We are scaling up research into traditional medicine to ensure that those who prefer to use these medicines have access to safe and quality products. The initial indications from the Medical Research Council are that these drugs bring relief to people with Aids, are affordable and have simple treatment regimens. It is also sad to learn about the unfortunate circumstances that forced you to resign from work. I have heard of difficult situations where people have been evicted from their homes and victimised due to their HIV status. I salute your courage to disclose your HIV status to all South Africans. It is only through these courageous efforts that we can stop the stigma and improve the lives of people living with HIV and Aids. The fact that, in what is probably one of the most challenging periods of your life, you decided to approach the President is proof of your belief in the dedication of your government to care for you. We are determined to provide these services to you and we will not betray the faith you, andother people who are infected and affected by HIV and Aids, have shown in this government. With love and warm regards, Dr Manto Tshabalala-Msimang Minister of Health [END OF LETTER FROM MINISTER OF HEALTH TO SINDISWA MOYA - BACK TO CONTENTS] |
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