n South African Journal on Human Rights - Why State policies that undermine HIV lay counsellors constitute retrogressive measures that violate the right of access to health care for pregnant women and infants




The authors make two distinct, but related, arguments. First, their empirical studies - conducted in three antenatal clinics in inner-city Johannesburg - demonstrate a strong correlation between (1) the government's failure to provide adequate remuneration to and secure employment of lay counsellors for the provision of HIV counseling and treatment ; and (2) the failure of many women and children to receive timely medical interventions. The data show that late payment of HIV lay counsellors has a devastating impact on HIV testing in these three clinics. The evidence also demonstrates that such timely HIV prevention and treatment is required for the survival of pregnant women and their neonates. Lay counsellors - through no fault of their own - are often unable to make these timely interventions. Second, the authors contend that the government's conscious deployment of inadequately remunerated and institutionally marginalized lay counsellors instead of health care professionals (who had previously undertaken counselling and testing) constitutes a retrogressive measure in terms of s 27 of the Constitution. In short, despite the government's commitment to an expanded, more efficacious ART rollout, it is currently delivering less health care - not more - and less access to adequate health care - not more or better - to this cohort of patients with HIV. Such retrogressive measures offend the Court's own understanding of the delivery of this constitutionally-mandated public good to pregnant women with HIV and their infants. The failure of the government to provide adequate and timely remuneration and secure employment to lay counsellors rises to the level required for finding an unjustifiable limitation of s 27's right of access to health care services. As the authors show, the violation flows from the improperly remunerated, insufficiently trained and generally marginalized manner in which lay counsellors are (mis)managed by a public health system that has chosen to supplant well-trained professionals with well-intentioned non-professionals in the delivery of essential components of now constitutionally-mandated ART and PMTCT programmes.


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