27 November 2010
New Delhi, India
In an affidavit before the SC, National AIDS Control Authority (NACO) said second line ART for HIV patients could not be extended to those who had received "irrational treatment" by private medical practitioners.
It said such persons were either switched to second line treatment at an early stage or were put directly on second line drugs without undergoing the preliminary treatment, thus making them hard cases.
NACO’s attempt to broadbase its second line treatment by excluding those who had little hope of surviving for long was, prima facie, unpalatable to a Bench of Chief Justice S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar, which was hearing a PIL filed by NGO Sankalp Rehabilitation Trust. "We cannot go by this discrimination. Right to life is a constitutional right," it said.
Solicitor general Gopal Subramaniam explained that world over, it was a common practice that there had to be a rationale for HIV patients for their upgradation from first line to second line treatment.
He supplemented NACO’s affidavit, which said, "Irrational treatment prescribed by private medical practitioners, where persons are switched to second line treatment without any evidence of treatment failure to first line ART, leads to early drug resistance and consequent risk of transmission of resistant virus."
NACO said about 70 hospitals had informed it that there were 24,212 persons on ART, of which 1,074 were put on second line treatment due to toxicity of first line drugs and another 2,173 because of treatment failure.
With the PIL claiming that over 15,000 patients were currently receiving second line treatment from private clinics/practitioners, the Bench said, "How can a person be punished if he is incorrectly treated upon by a private practitioner. Under Article 21, whether this argument can stand has to be seen. People are going to die and this cannot happen."