In the first ruling of its kind in the world, the Geneva Court of Justice has quashed an 18-month prison sentence given to a 34-year-old HIV-positive African migrant who was convicted of HIV exposure by a lower court in December 2008. This was done after accepting expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS Consensus Statement on the Effect of Treatment on Transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000. The ruling suggests that, in Switzerland at least, effectively treated HIV-positive individuals should no longer be prosecuted for having unprotected sex. With advocates from around the world taking interest in the case, it is possible that this ruling will have consequences for other countries with HIV exposure laws.
Values, Policies and Rights
This paper explores the legal and normative potential of the right to health to mitigate the restrictive impact of trade-related intellectual property rules on access to medicines, as evidenced by the global outcomes of the seminal pharmaceutical company litigation in South Africa in 2001. The author argues that the litigation and resulting public furor provoked a paradigm shift in global approaches to AIDS treatment in sub-Saharan Africa. She argues further that this outcome illustrates how human rights in concert with social action were able to effectively challenge dominant claims about the necessity of stringent trade-related intellectual property rights in poor countries, and ergo, to raise the priority of public health needs in related decision-making. The author explores the causal role of rights in achieving these outcomes through the analytical lens provided by international legal compliance theories, and in particular, the model of normative emergence proposed by Martha Finnemore and Kathryn Sikkink. She suggests that the AIDS medicines experience offers strategic guidance for realizing the right to health’s transformative potential with regard to essential medicines more generally.
South African researchers and traditional leaders are reported to have raised concern that scientists could patent the genes of local ethnic groups who have donated blood samples as part of a worldwide genome-mapping project. Several lawyers, researchers and community leaders have denounced an American patent application for unique gene mutations found in DNA samples collected in Tanzania, Kenya and Sudan. The applicants from the University of Pennsylvania, are reported to have collected more than 2,000 samples in East Africa and to have a blood bank of more than 5,000 samples in total, taken from 80 African ethnic groups.
Despite the cholera epidemic in Zimbabwe continuing for more than six months, sanitation remains poor and lack of access to safe drinking water persists against the backdrop of a collapsed health system with degraded infrastructure and very few health workers. Health in Zimbabwe is presently largely unavailable, unacceptable, inaccessible and of poor quality. This report concludes that Zimbabwe will require long term commitment of the humanitarian and donor agencies working in the country with large scale, multi-faceted assistance to address the situation. It urges the government of Zimbabwe to formulate an emergency health response plan to restore the public health system must be produced and implemented. The authors argue that government should also ensure the supply of clean drinking water and adequate sanitation.
Access to medicines forms an indispensable part of the right to the highest attainable standard of health. Numerous court cases, as well as resolutions of the United Nations (UN) Commission on Human Rights, confirm that access to essential medicines is a fundamental element of the right to health. This briefing examines the issue of access to medicines in the context of sexual and reproductive health. Sexual and reproductive health are key elements of the right to the highest attainable standard of health. The briefing considers the responsibilities of pharmaceutical companies for enhancing access to medicines. The briefing also introduces the background and content of the Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines ('the Guidelines'). Based on the right to health responsibilities of pharmaceutical companies, the Guidelines provide a framework for enhancing access to medicines.
In Part 1 of this three-part study, the authors undertook a multi-method study in three phases – a survey, interviews and case descriptions that drew on site visits – and in each of the second and third phases they focused on a purposive sample of those involved in the previous phase. Seven recommendations emerged for those involved in establishing or leading organisations that support the use of research evidence in developing health policy: collaborate with other organisations; establish strong links with policymakers and involve stakeholders in the work; be independent and manage conflicts of interest among those involved in the work; build capacity among those working in the organisation; use good methods and be transparent in the work; start small, have a clear audience and scope, and address important questions; and be attentive to implementation considerations, even if implementation is not a remit.
In Part 2, the authors drew on many people and organisations around the world, including their project reference group, to generate a list of organisations to survey. They sent the questionnaire by email to 176 organisations and followed up periodically with non-responders by email and telephone. They received completed questionnaires from 152 (86%) organisations. More than one-half of the organisations (and particularly HTA agencies) reported that examples from other countries were helpful in establishing their organisation. The findings confirm that the principles of evidence-based medicine dominate current guideline programmes and underline the importance of collaborating with other organisations. The survey also provides a description of the history, structure, processes, outputs, and perceived strengths and weaknesses of existing organisations from which those establishing or leading similar organisations can draw.
In Part 3, the authors purposively sampled organisations from among those who completed a questionnaire in the first phase of the study, developed and piloted a semi-structured interview guide, and conducted the interviews by telephone, audio-taped them, and took notes simultaneously. They interviewed the director (or his or her nominee) in 25 organisations, of which 12 were GSUs. Using rigorous methods that are systematic and transparent (sometimes shortened to 'being evidence-based') was the most commonly cited strength among all organisations. GSUs more consistently described their close links with policymakers as a strength, whereas organisations producing CPGs, HTAs, or both had conflicting viewpoints about such close links. With few exceptions, all types of organisations tended to focus largely on weaknesses in implementation, rather than strengths.
Zimbabwe is a party to the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the African Charter on Human and Peoples’ Rights. It has a legally binding obligation to respect, protect and fulfill these rights for all people within its jurisdiction. The report argues that a causal chain runs from Mugabe’s economic policies, to Zimbabwe’s economic collapse, food insecurity and malnutrition, and the current outbreaks of infectious disease. The determinants of health, such as broken sewerage systems, chronic food insecurity and widespread starvation, underlie disease epidemics such as cholera and anthrax and a deterioration of maternal health care. The authors recommend that the international community needs to resolve the political impasse, launch an emergency health response with services controlled by a United Nations-designated agency or consortium, refer the situation to the International Criminal Court for Crimes against Humanity, convene an emergency summit on HIV, AIDS and TB and prevent further deterioration of household food supply.
In this paper, some of the right-to-health features of health systems are identified, such as a comprehensive national health plan, and 72 indicators are proposed that reflect some of these features. Globally processed data on these indicators was collected for 194 countries. Globally processed data was not available for 18 indicators for any country, suggesting that organisations that obtain such data give insufficient attention to the right-to-health features of health systems. Where available, indicators show where health systems need to be improved to better realise the right to health. The paper provides recommendations for governments, international bodies, civil-society organisations, and other institutions and suggests that these indicators and data, although not perfect, provide a basis for the monitoring of health systems and the progressive realisation of the right to health. Right-to-health features are obligations under human rights law.