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. 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.

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