SECTION27 is a public interest law centre that seeks to influence, develop and use the law to protect, promote and advance human rights. Our name is drawn from the section in the South African Constitution which enshrines everyone's right to health care, food, water and social security.
With the vitally important UN High Level meeting on AIDS only one week away, the South African National AIDS Council (SANAC) has issued an important resolution setting out the country’s position in the negotiations for a renewed commitment to HIV and TB.
On 8–10 June, 2011, key stakeholders from all over the world will gather in New York to review progress of the global response to HIV/AIDS and to plan the way forward. This forum has the potential to reinvigorate the commitment to HIV/AIDS nationally and internationally.
In light of this, on 20 May, SECTION27, TAC, Médecins Sans Frontières, the World AIDS Campaign and the AIDS and Rights Alliance of Southern Africa sent a letter to the Director General for Health calling on the South African government to take the lead in setting ambitious and measurable targets, and encouraging similar commitments from other UN member states.
SECTION27 made a submission to the Department of Health on 22 April 2011 on the draft National Health Amendment Bill, 2011 (“the draft Bill”). In so doing, it recognised the publication of the draft Bill as the first legislative step towards the establishment of a single, accountable and structurally and operationally independent Office of Health Standards Compliance (“Office”) with jurisdiction over the private sector and the public sector at all spheres of government. Importantly, however, SECTION27’s submission came to the conclusion that the proposed Office, as contemplated by the draft Bill, does not have an adequate level of structural and operational autonomy. SECTION27 is of the view that the proposed mandate of the Office cannot be discharged effectively unless it has an adequate level of structural and operational autonomy.
SECTION27 is becoming increasingly aware that some medical schemes try to narrow the scope of the benefit options they offer when it comes to processing claims. This may be done, for example, by mischaracterising claims so that they fall outside benefit options, improperly imposing late joiner penalties and waiting periods, or failing to cover prescribed minimum benefits as required by law. Such practices are unlawful and violate the rights of scheme members who are forced to incur out-of-pocket medical expenses in circumstances where they are covered by their benefit options. In some cases, they may also be prevented from accessing necessary health care.
Our client, IE, has been HIV positive for 20 years and participated in early trials of antiretroviral (ARV) medicines before the conventional treatment regimens became available. As a result of his exposure to various ARV medicines and regimens over an extended period, IE began to develop fatty growths on his back and neck and was diagnosed with ARV-related lipodystrophy. On the recommendation of his physician, IE applied to Bonitas Medical Fund (Bonitas) for authorisation for the surgical removal of the fatty growths on his body.
Bonitas, however, refused to cover the medical procedure on the basis that it considered the procedure to be cosmetic surgery. There was no medical basis for this decision. Bonitas failed to consider all the relevant information before it and mischaracterised the claim as cosmetic in order to avoid its legal obligation to cover IE’s costs. Following SECTION27’s intervention on behalf of IE, the claim was authorised with retrospective effect and IE was reimbursed most of his out-of-pocket expenses.
Cabinet recently resolved to ask Parliament to take the necessary steps to enable South Africa to ratify a decision taken by the World Trade Organization (WTO) on intellectual property and access to medicines. At its meeting held on 16 March 2011, Cabinet decided to request Parliament to –
– ratify the WTO decision on the implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health; and
– deposit “an instrument of ratification … with the WTO.”
As organisations that are committed to ensuring universal access to essential medicines, as an integral part of the constitutional right to have access to health care services, TAC and SECTION27 call on Parliament not to ratify the decision. In this press statement we explain why we make this call.