[*QUOTE*]
End State Sanctioned Denial!
A TAC briefing on why TAC and SAMA are taking the Minister of
Health to court
The Treatment Action Campaign and the South African Medical
Association (SAMA) have filed court papers against the Minister of
Health, the Medicines Control Council (MCC), the Western Cape MEC for
Health, as well as pharmaceutical proprietor Matthias Rath and several
of his employees and associates, including AIDS denialists Anthony
Brink, David Rasnick and Sam Mhlongo (Professor of Family Medicine,
MEDUNSA). This briefing explains why.
In addition to Rath, his employees and associates, we are also suing
our government and certain statutory bodies. We do so with great
reluctance. But it is our mandate and duty to protect the rights of
people living with HIV/AIDS. The Minister and the statutory bodies
that she oversees have had ample opportunity to avoid this litigation
but have chosen not to.
Over 5 million people live with HIV in South Africa. Over 300,000
people died of AIDS last year and more will die this year. It is
crucial if we are to make progress against the epidemic that
government officials convey accurate information about the disease,
especially its prevention and treatment. The scientifically bogus
messages engulfing South African society about HIV is leading to
confusion and numerous avoidable deaths.
The Minister of Health: A track record of supporting AIDS denialists
The Minister of Health, Manto Tshabalala-Msimang, has a track record
of supporting AIDS denialists, including Roberto Girraldo, Tine van
der Maas and Matthias Rath. Despite a Cabinet decision in November
2003 to provide antiretroviral (ARV) treatment, the only
scientifically proven medicines to reverse the course of AIDS, she has
not once encouraged people to seek such treatment. Her exaggeration of
the side-effects of ARVs has discouraged people from using them. On
numerous occasions she has encouraged people to seek unproven
treatments for AIDS including garlic, African potatoes, olive oil and
multivitamins.
The consequence of this has been public confusion. Such confusion is
likely to have caused many avoidable premature deaths.
The right of patients to receive accurate information is described in
the recently adopted National Health Act. Irrespective of
Tshabalala-Msimang's personal opinions, it is her duty as Minister of
Health, i.e. an appointed public official, to convey to the public
accurate information on HIV, including its prevention and treatment,
based on the current scientific consensus. This means she must
encourage people to get tested for HIV and, if necessary, get treated
using the best available medicines at public health facilities
including using opportunistic infection drugs and ARVs.
Matthias Rath's illegal activities
Since at least November 2004, the German pharmaceutical proprietor
Matthias Rath has been openly conducting illegal activities in South
Africa to the knowledge of the Minister, Western Cape provincial
health department and the Medicines Control Council. These include:
* making false claims about medicines, including that vitamins
(which he sells) reverse the course of AIDS and that
antiretrovirals make AIDS worse;
* distributing medicines (since 2005), unregistered for the
treatment of HIV, with the purpose of treating people with HIV
and in doing so persuading them not to seek the services of the
public health system; and
* conducting an experiment (since 2005) on humans without the
authorisation of the Medicines Control Council
The above activities are in contravention of the Medicines Act (1968).
Furthermore Rath has been representing himself as a medical doctor
while carrying out these duties, even though he is not registered with
the Health Professions Council of South Africa (HPCSA) or any other
professional statutory body. This is illegal.
A number of people have died directly as a result of Rath's illegal
activities. TAC has analysed some of these deaths in an article
available on our website,
www.tac.org.za. Possibly many more people
have died because of the confusion he has created.
Rath's activities are not only illegal; they also directly contradict
government policy, in particular the Operational Plan for HIV/AIDS
Care, Management and Treatment (Operational Plan) adopted by Cabinet
on 19 November 2003.
TAC's efforts to get state authorities to stop Rath's activities
TAC has been trying to get the relevant state authorities to take
action against Rath since February 2005. Our efforts included alerting
the MCC in February, filing a complaint with the HPCSA which lead to
them filing a complaint with the Khayelitsha police, meeting with
Department of Health law enforcement agents in April, submitting a
detailed affidavit presenting evidence of Rath's illegal activities to
the Department of Health's Law Enforcement Unit in May and writing
several letters to the MCC, Minister of Health and Western Cape MEC
for Health. We have also held several demonstrations highlighting
Rath's dangerous activities.
Other organisations including Medecins Sans Frontieres (MSF), as well
as a group of about 200 Western Cape doctors have also tried to get
government to stop the illegal activities of Rath. Individuals,
including journalist Terry Bell, have also laid complaints with the MCC.
Rath has been condemned by the United Nations, SAMA, MSF, Southern
African HIV Clinicians Society, SACC, COSATU, SACP, Harvard School of
Medicine, ANC MPs Kader Asmal and Ben Turok, ANC Western Cape Health
Portfolio Committee member Saadiq Kariem and many others. He has been
ordered to withdraw unsubstantiated claims in his adverts by the
Advertising Standards Authority of South Africa (ASASA) as well as the
British equivalent of ASASA. He has at least two court judgments
against him in Germany for making unsubstantiated claims about vitamin
supplements in adverts. He also has a court ruling against him in
Holland for defamation. The US Food and Drug Administration has
cautioned him for making unproven claims about his vitamins.
Government’s failure to act
Despite the TAC’s and others' efforts to get government to act,
nothing systematic has been done to stop the illegal activities of
Rath. On the contrary, the Minister of Health's actions could only
have emboldened him. For example:
* Despite having numerous opportunities to condemn Rath, the
Minister of Health has never done so. For example, at an Imbizo
in Khayelitsha addressed by the Minister of Health on 16 April,
numerous members of the community asked the Minister to condemn
the activities of Rath. She refused to do so.
* In an answer to a question in Parliament on 15 June 2005, the
Minister admitted to having had a meeting alone with Rath on 16
April 2005, and said that they “discussed his concern for people
infected with HIV and suffering from the impact of AIDS”. She
said she would “only distance myself from Dr Rath if it can be
demonstrated that the vitamin supplements that he is prescribing
are poisonous for people infected with HIV.”
* She allowed Rath's agents, David Rasnick and Sam Mhlongo, to
present their claims to the National Health Council on 23
September 2005.
* A Rath publication, You Can!, states “The Dr. Rath Health
Foundation Africa has the support of our Minister of Health and
our Government.” The Minister of Health has not distanced
herself from this statement.
* In various radio interviews, the Director-General of Health has
made confusing, unscientific statements about Rath's drugs and
antiretrovirals (see TAC founding affidavit or
www.health-e.org.za for details). His statements can only be
interpreted as supportive of Rath.
* The Minister of Health has also appeared supportingly in a
propaganda video produced by another pseudo-scientist, Tine van
der Maas. Van der Maas claims that her recipes treat AIDS, as
well as other diseases such as diabetes. The Minister has shown
this video in some forums. The production of the video was in
part supported by the Rath Foundation.
The Medicines Control Council and the MEC for Health in the Western
Cape have likewise failed to take any concerted action against Rath.
Our court papers, however, do not seek any order against them, unless
they oppose the application, in which case we will ask the court for
costs.
What is in the TAC/SAMA court papers?
The Notice of Motion asks the court to find that Matthias Rath and his
foundation are breaching the law by conducting an illegal clinical
trial and distributing medicines in violation of the Medicines Act. We
seek an interdict against Rath, his foundation and various Rath agents
to stop them from continuing these illegal activities and to stop them
from publishing false claims in adverts (including pamphlets and
posters) about their products.
We also ask the court to find that the Minister of Health and
Director-General have a duty to take measures against these illegal
activities. Therefore, we ask the court to order them to report to the
court, within a month of judgment, what steps they have taken to
ensure the requested court order against Rath and his agents is
carried out.
The main *founding affidavit* presents the evidence that Rath and his
agents have broken the law, as well as evidence of the state's failure
to act. It explains the following affidavits:
*Robert Dorrington*, head of the Centre for Actuarial Research at UCT,
describes the state of the HIV epidemic in South Africa and its effect
on mortality.
*Francois Venter*, President of the Southern African HIV Clinicians
Society, has provided an affidavit explaining the science of HIV. He
explains that there is scientific consensus that antiretrovirals are
the only treatments currently available that reverse the course of
AIDS. He also explains that although there is evidence that
multivitamins slow down progression to AIDS, they are not a substitute
for antiretroviral treatment. He points out that Rath does not
prescribe the same vitamins in the same dosages as those that have
been found to be useful for people with HIV. He also describes some of
the poor logic and factual distortions of AIDS denialists. Venter also
describes the false claims made by Rath and his agents in advertising.
*Andrew Gray*, an expert pharmacologist at the Nelson Mandela Medical
School, UKZN, explains that in his view Rath's drugs are being sold in
violation of the Medicines Act.
*Leslie London*, a professor at UCT's medical school and an expert in
public health and bioethics, contends that Rath's clinical trial is
illegal and unethical.
Affidavits by *Nandipha Ntsholo* and others (some of whom wish to
remain anonymous) explain that they visited Rath clinics and were
treated as part of a human experiment.
*Zondani Magwebu* and another deponent (who wishes to remain
anonymous) describe how close members died who were being treated by
Rath and/or his agents.
*Peter Saranchuk*, an MSF doctor working in Khayelitsha, and Kevin
Rebe, an HIV doctor at GF Jooste Hospital, explain how their patients
were confused by Rath and/or his agents. In Saranchuk's case, one
patient he was treating died as a result of the patient's delay in
seeking assistance from the public health system.
*Marta Darder* of MSF explains the efforts she made to get the
relevant authorities to act against the illegal activities of Rath.
*Marius Otto*, representing SAMA, explains SAMA's interest in
protecting public health.
The issue of choice
It has been alleged that TAC is denying people choices by taking
action against Rath. This is not true. The Minister of Health, like
all elected and appointed public officials, has a duty to provide the
public with scientifically accurate information on HIV treatment, not
choices between proven treatments and unproven ones. Individuals then
have the choice to follow her advice or ignore it. The same is true
for pharmaceutical proprietors. They may not make unproven claims
about their products because doing so results in people making poorly
informed choices.
TAC's position on proper nutrition
TAC supports government's policy of ensuring proper nutrition for
people living with HIV including providing food parcels, vitamin
supplements and social grants. Good nutrition extends the lives of
people with HIV and delays the onset of AIDS. But vitamins are not a
substitute for ARVs and should not be prescribed in untested doses, as
is being done by Rath and people who work for him.
What TAC hopes to achieve
TAC hopes to bring about an end to the politically supported campaign
of AIDS denialism, misinformation and pseudo-science. Yet again we
call on the Minister of Health to end her support of Rath, his agents
and other pseudo-scientists by agreeing to act decisively against such
people. We urge the Minister to not let untested claims fool her. We
have lost too many lives because of AIDS denialism. It is time for the
Minister to lead, not to confuse.
[*/QUOTE*]
