South Africa stands at a crossroads in the fight against tuberculosis. An important victory in the Constitutional Court has affirmed the direction that we should take, but we need sustained political will and activism to ensure that we do not squander this momentum.

 The Dudley Lee case

Dudley Lee spent over four years in Pollsmoor Prison outside Cape Town as an awaiting trial detainee. Eventually he was acquitted and released, but not before being infected with tuberculosis.

Lee asked the Constitutional Court of South Africa to decide whether the Department of Correctional Services (DCS) could be held liable for causing his TB infection. In December 2012, seven long years after he started legal proceedings against the DCS, the Constitutional Court ruled in Lee’s favour.

The Treatment Action Campaign (TAC), Wits Justice Project, and the Centre for Applied Legal Studies, represented by SECTION27, participated in the case as amici curiae (friends of the court). In doing so they helped Lee to achieve one of the major legal victories for human rights and public health in recent history.

The legal issues raised in the case included complex theories of legal causation and their interaction with constitutional rights and health policy. The judgment is broad and likely to have wide-ranging legal implications.

While the lower courts have yet to interpret the ruling, any fair reading of it suggests that it would now be easier for a claimant to prove that the DCS caused his or her TB infection. The DCS is thus at risk of potential lawsuits from a large number of current or former detainees.

This Constitutional Court ruling has at least three interconnected consequences.

First, individual prisoners now have a way to vindicate and protect their rights.

Second, the state has been held accountable and therefore cannot violate rights and disregard its duties with impunity. It must do what it is supposed to do or pay compensation.

Third, because the state is accountable, it has an incentive to carry out its duties better, which hopefully means that it will. This could have enormous benefits for the health of prisoners, their families and the wider communities to which many of them return after their incarceration.

A window of opportunity

In South Africa the Lee case energised TB activism to a degree that has not been seen in many years. This was most evident in the direct involvement of organisations like TAC and SECTION27 in the Constitutional Court case. It was also visible in demonstrations held to raise awareness of Lee’s case and about the growing crisis of TB in prisons.

Meanwhile, an expanding body of scientific evidence suggests that to tip the scales in our favour in our battle against TB we should focus on reducing transmission rates in prisons.

In light of recent legal, social and scientific developments, the case for tackling TB in prisons is stronger than ever. Whether or not we do so could affect the health of millions for years to come.

Are prisons TB factories?

If you consider the high TB transmission rates in South Africa’s prisons and the vast number of people who have been through these institutions, it is staggering to realise how many individuals the DCS may have exposed to TB infection over the years. A study of Polllsmoor Prison, where Dudley Lee contracted TB, showed that conditions in the facility created an approximately 90% risk of TB transmission per annum.

Today, over 150,000 people crowd South Africa’s prisons. A third of these inmates are awaiting trial and presumed innocent. Yet most of them will, presumably, contract TB within a year.

As you read this, Pollsmoor Prison is – in the words of the Constitutional Court judgment – “notoriously overcrowded” and provides “ideal conditions for transmission of TB.”

The failure to control TB in prisons is worrying for a number of reasons:

•  First, TB diagnosis, treatment and prevention should be easy in prison. After all, the prison population is – or should be – known and captive. The question we face is: if we cannot manage TB in a confined population, how can we expect to control it outside prisons?

•  Second, detainees in South Africa are endowed with constitutional rights that should work against TB transmission. These include rights of access to health care services, rights to bodily integrity, and a right to detention in conditions that are consistent with human dignity. This latter right includes the provision of adequate accommodation, nutrition, and medical treatment.

•  Third, the DCS has already established the foundations of a rigorous, effective programme for the prevention and treatment of TB in prisons. This programme is outlined in the Correctional Services Act No 111 of 1998 as well as in regulations and ‘Standing Orders’ made in terms of the Act. Yet, as the Court found, the DCS has failed to implement these laws.

•  Finally, new evidence is emerging to suggest that tackling the TB problem in prisons is crucial to beating the disease in the general population. Professor Robin Wood, Director of the Desmond Tutu HIV Centre at the University of Cape Town, is a key figure behind the development of this theory. In a recent study, Professor Wood and his colleagues compared the experiences of New York City and Cape Town during the early 1900s. At this time, the size of the TB epidemic in each city was approximately the same.

While New York has managed to control its TB problem, Cape Town has not: in 2010, for example, 27 people died of TB in New York while 3,000 died in Cape Town. Wood suggests that one of the major reasons for this difference is that New York prioritised the control of TB in its largest prison, Rikers Island. The experience of Dudley Lee in Pollsmoor – Cape Town’s largest prison – clearly illustrates that a similar prioritisation is needed.

What difference will activism make?

The success of the 2002 TAC case that forced the South African state to provide treatment for prevention of mother-to-child transmission (PMTCT) of HIV is a subject that has been written about extensively. In analysing the impact of this case, commentators have largely agreed that the social movement that led to the case was largely responsible for bringing about this landmark judgement.

Supporters of this movement have transformed the judgment into real change: pregnant women now have access to treatment, and organisational support is provided for campaigns and education.

In short, social activism turned the court’s judgement into a history-making, life-saving force. The first generation of children to benefit from this ruling are testimony to the extraordinary power of combining legal action and social activism.

But ten years after the PMTCT case, TB remains the number one cause of death in people with HIV. TB is an entirely preventable infection and, for the most part, is curable.

Prevention is relatively simple and the basic principles remain the same: better ventilation and sanitation, and early detection – a simple set of common-sense precautions. These well-known methods should have eliminated the disease decades ago.

Controlling TB presents many challenges but these are not insurmountable. Unfortunately, there has been a stagnation in political and legal thinking about TB. Today, the disease which continues to have a huge impact on so many lives still receives nothing like the attention it should.

2012 witnessed a flurry of activism thanks to Dudley Lee’s story and the growing realisation that we must target prisons if we are to defeat TB, even if this means that we need to address the complex relationship that South Africa has with crime.

The Constitutional Court has spoken on the issue of TB control in prisons and has handed activists a remarkable tool. How then should we use this?

The way forward

TAC, SECTION27, the Wits Justice Project, and the Centre for Applied Legal Studies have made the development and implementation of a comprehensive TB prevention, diagnosis, treatment, care and support programme a priority for 2013 and beyond.

The DCS must develop the specifics of this programme. It must be costed and budgeted for, and accompanied by a detailed implementation plan specifying milestones and indicators.

The DCS has a wealth of models and support available, from sources such as the World Health Organization and the Centres for Disease Control and Prevention to organisations like TAC, SECTION27, and their partners.

Moreover – and this is something that the DCS appears to have overlooked – the foundation for such a plan is already in place. The body of law comprising the Correctional Services Act and the associated regulations and orders are detailed and thorough. The DCS therefore does not need to create a policy from scratch. It must focus on implementation instead.

In an encouraging development, the DCS and the Department of Health (DoH) jointly announced the “Guidelines for the Management of Tuberculosis, Human Immunodeficiency Virus and Sexually-Transmitted Infections in Correctional Centres, 2013” (the Guidelines) on World TB Day, 24 March 2013.

The publication of these guidelines may indicate that the DCS is stepping up to its duties. The DoH’s close involvement in creating these guidelines suggests that much-needed collaboration between these departments may also be taking place.

The coalition of organisations working on these issues has made a submission on the guidelines. To assist the DCS in developing the plan, a round-table meeting was held on 28 May 2013. Medical and legal experts, activists, representatives of the DCS and DoH and other interested parties came together to shape the contours of the plan and agree on how to implement it. A short report of that meeting is published here <link>. A more detailed report is available at www.section27.org.za

We have won a major legal victory in the Dudley Lee case, but the real work begins now. The judgment is only a tool—it does nothing unless we use it. However, properly used, it could change the course of the TB epidemic as we know it.

 

By John Stephens

John Stephens is a researcher with SECTION27.

Sources: Johnstone-Robertson et al, ‘Tuberculosis in a South African Prison – A Transmission Modelling Analysis’ 101 SAMJ (2011) ; Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC)