Van Biljon and others v Minister of Correctional Services and others 1997 (4) SA 441 (C), 1997 (6) BCLR 789 (C)

Prisoner's rights - section 35(2) of Constitution of South Africa Act 108 of 1996 - Provision of medical treatment to HIV positive prisoners at state expense - failure by state to make case that it could not afford - court not to order doctors to prescribe drug

Facts

The applicants who were all inmates at a prison and who were diagnosed HIV positive, sought a declaration from the High Court inter alia, that the right to adequate medical treatment of the applicants and other HIV positive prisoners, who had reached the symptomatic stage of the disease and whose CD4 counts were less than 500/ml. And that they were entitled to prescription and to receive at state expense, appropriate anti-viral medication at the expense of the state. The respondents argued that prisoners were entitled to equal treatment at the provincial state hospitals at that provided to other persons. And that what could be provided to HIV positive prisoners was therefore determined by the policy of the provincial hospitals in that regard. The policy was that the use of the AZT antiretroviral at those hospitals was limited. Prescription of those drugs at state expense was, firstly, that only AZT monotherapy was provided; secondly, that only HIV patients who would be considered for AZT treatment are essentially those with a CD4 count of less than 200/ml and whose condition had developed to full-blown AIDS; and thirdly, that in order to qualify for AZT at state expense, still the patient had to have a CD4 count of more than 50/ml.

Issues

The first issue was whether the applicants who fell the category of the HIV patients above stated were entitle to have anti-viral therapy prescribed for them on medical grounds. The second issue was whether the applicants were entitled to have therapy prescribed for them at state expense.

Decision

Brand J

On the first issue the court held that it was not the function of the court to dictate when doctors should make prescriptions and that this was for obvious reasons. The courts were not empowered to do so. It was not for the court to delve into the intricacies of modern medicine.
On the second issue the court held that it was not in dispute that prisoners were entitled to medical treatment at the expense of the state. This was by virtue of the provisions of section 35(2)(e) of the Constitution. Section makes provision to the effect that inmates are entitled to conditions of detention that are consistent with human dignity and among others to the provision of medical treatment at the expense of the state. The court also confirmed the position at common law. This is to the effect that prisoners retain all basic rights not temporarily taken away or necessarily inconsistent with being prisoner.
What remained to be decided was whether prisoners were entitled to expense medical care not available to persons outside prison. The court held that the standard of medical care of prisoners could not be determined according to the standard afforded to persons outside prison and could neither be determined by the lowest dominator of the poorest prisoner on the basis that he or she could afford no better treatment outside. That since the state kept prisoners in conditions where they were more vulnerable to opportunistic infections than HIV patients outside, the adequate medical treatment with which the state had to provide them had to be treatment which was better able to improve their immune system than which the state provided to HIV patients outside.
That once it is established that anything less than a particular form of medical treatment would not be adequate, the prisoner has a constitutional right that form of medical treatment and it would be no defence to the prison authorities that they cannot afford to provide that form of medical treatment. That this does not however mean that financial conditions or budgetary constraints are irrelevant in the context. What is 'adequate medical treatment' cannot be determined in vacuo. That in determining what is 'adequate' regard must be had to what the state can afford. That if the prison authorities should therefore, which they did not do, that they cannot afford a particular form of treatment the court may as well decide that the less effective treatment which is affordable be provided.