Health department justifies unequal access to Nevirapine by saying that some provinces lack the resources needed PRETORIA Health department director-general Ayanda Ntsaluba tried to "defend the indefensible" in an affidavit before the Pretoria High Court by claiming provinces lacked the resources to expand a pilot programme allowing for the free supply of Nevirapine to HIVpositive pregnant mothers.

These pilot programmes are already in place in certain sites in Gauteng and Western Cape.

Advocate Gilbert Marcus, acting for the Treatment Action Campaign (TAC), told the court yesterday the health department's understanding of equity reflected that of George Orwell's well-known book Animal Farm, in which some babies particularly in Gauteng and Western Cape are "more equal than others".

The TAC, with about 200 doctors, is trying to compel Health Minister Manto Tshabalala Msimang and eight of her provincial MECs to make Nevirapine more widely available.

Advocate Marumo Moerane, for the health department, argued for hours before Judge Chris Botha that the department did not breach stipulations in the Constitution and Bill of Rights by failing to provide the drug.

Moerane said that the state already provided a "reasonable" health-care programme and that exceptions could not be made for one disease when other serious diseases threatened many lives.

"The constitution provides for a right to reasonable health services, not a right to Nevirapine. That is the critical distinction there is no established right to Panado," Moerane argued.

The health department says the defence of other provinces was a lack of financial resources to expand capacity at 18 state clinics where pilot schemes in the supply and monitoring of Nevirapine are conducted.

"The public's demand for quick solutions would lead to extremely negative consequences.

"This is a completely new drug which necessitates the health department's progressive expansion of the frontiers of rights to health care," he said.

Progress depended on the operational lessons learnt from the training sites and whether financial resources became available.

Pushed by Judge Botha, he conceded the department did not want to set targets it might not be able to meet in the event of being taken to court if it failed to meet those deadlines.

He said set dates for delivery could lead to the perception of them as rights by the public.

Inferring that the department was merely playing for time, Marcus said its approach did not allow any broadening whatsoever of the present limited supply of Nevirapine at the 18 designated sites before April 2003.

Reacting to Moerane's contention that only state doctors where the pilot projects are run, and not private practitioners, should administer Nevirapine, Marcus said: "It is absurd that additional policing should be required outside the Nevirapine cabinet'".

Marcus quoted a Medicines Control Council member in court earlier as warning that SA was "in the grip of a catastrophe".

About 20000 babies would die every year, Marcus told the court. Judgment in the case is expected "before Christmas", Botha said.