Order of the Delhi High Court regarding PWHA's right to access treatment and medicines

[Guest guest]

The Hon’ble High Court of Delhi recently, on 05. 05. 04, pronounced an order

upholding an HIV positive person’s fundamental right to access treatment and

medicines. A brief background of the facts and summary of the order is given

below.

LX v. Union of India & Ors,

WP (Civil) 7330 of 2000,

High Court of Delhi at New Delhi

The Petitioner is an HIV positive person who was lodged at Tihar Jail in

Delhi. While in jail, he was found to be HIV positive and in April 2000, was

put on a regimen of Anti Retroviral Drugs (ARVs), consisting of Duovir (AZT

and Lamividune) Sequinavir by the jail authorities. In doing so, the

hospital administration did not inform him that the medication has to be

taken for life; and that an interruption or discontinuation has grave

ill-effects on health. They also failed to consider the sustainability of

treatment, given the cost of ARVs and the Petitioner’s inability to afford

such expensive medication.

In May 2000, the Petitioner was granted bail. However, the jail authorities

informed him that they would discontinue to dispense ARV medicines if and

when he is released on bail. As a consequence, the Petitioner was caught in

a dilemma where he could either enjoy his freedom or his medicines and

health. It led to a peculiar situation where the Petitioner had to give up

the fundamental right to personal liberty in order to enjoy the right to

life. Both these rights are, of course, guaranteed to all citizens under the

Constitution of India.

The issue was brought before the Hon’ble High Court of Delhi through a writ

filed in December 2000 where it was argued that there is a positive

obligation on the state to ensure that the Petitioner receives ARVs even

after his release on bail. A failure to do so would constitute an

infringement of fundamental his right to life and health.

Pending disposal, the Hon’ble High Court issued an interim order in January

2001 directing the jail hospital to supply the same ARVs to the Petitioner.

This order was modified a year later to allow the Petitioner to receive

medication from the All India Institute of Medical Sciences (AIIMS) as

receiving them from the jail posed many administrative difficulties.

Accordingly, the Petitioner continued to receive his medicines from AIIMS.

In January 2004, the Government of India’s decision to provide free ARVs to

people living with HIV/AIDS through the ART roll out plan was brought to the

notice of the Court. In the light of this, the Court directed the petitioner

to present himself for a medical examination and for his medicines at Lok

Nayak hospital (LNJP), one of the hospitals designated for ART Roll out in

Delhi.

At the hospital, however, the petitioner was told that he does not qualify

the criteria for receiving medicines under the ART roll out plan and that

the combination of drugs that he had been prescribed were not provided under

the scheme.

The Court was informed about the hospital’s refusal to provide treatment to

the Petitioner The Hon’ble Court in its final order by Justice Sanjay Kishan

Kaul directed that the petitioner be supplied medicines at AIIMS till 30th

June 2004. Thereafter, the Government has been instructed to enroll the

Petitioner for treatment under the ART plan wherein he shall be administered

medical tests and medication for life.

The Government requested the court to allow them to substitute the

Petitioner’s medicines to those under the current ART plan if feasible. The

Court allowed such switch over of medicines on the condition that the

efficacy of the drug combination under the ART plan should be assessed

through a medical examination. If it is found that the medicines under the

ART plan do not provide the same benefits to the petitioner as before, then

he shall be given the present ART combination. In other words, the court

ordered the Government to provide all medicines that the petitioner has been

taking, irrespective of whether they are available under the ART plan or

not.

The High Court’s decision has provided much needed relief to the Petitioner,

who had been facing uncertainty vis-à-vis access to medicines and healthcare

by ensuring continued access to medical treatment and ARV drugs. He is now

assured of his medicines as well as his freedom. Given the general

difficulty in accessing justice, the order assumes significance in that it

positively and strongly reinforces the rights of HIV positive persons to

life and liberty.

For more information, please contact the Lawyers Collective HIV/AIDS Unit at

aidslaw1@... <mailto:aidslaw1@...>