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2.1 The previous project committee did valuable research in respect of HIV/AIDS in schools, which was reflected in Working Paper 58.[8] In general it found that there were no uniform or sufficient measures or policy guidelines regarding HIV/AIDS in schools and that a real need for a uniform national policy existed.
2.2 The Commission came to the following preliminary conclusions in Working Paper 58:[9]
2.2.1 The risk of HIV transmission in schools, under normal circumstances, is effectively excluded.[10] There were at that time also no known cases of transmission of HIV in the school environment.[11]
2.2.2 In terms of the Constitution of the Republic of South Africa Act, 1993[12] (the 1993 interim Constitution) every person had the right to basic education and to equal access to educational institutions, and unfair discrimination was prohibited.[13]
2.2.3 In the light of the negligible risk of transmission of HIV in the school environment, compulsory testing of all school children as a prerequisite for admission to any school, or any unfair discriminatory treatment (for instance by refusing continued school attendance solely on the basis of the HIV status of a child) would be unjustified. There would, however, be justification for withdrawing a child from school in cases where he or she posed a significant health risk to others (for instance when such a child had a serious secondary infection which could not be treated and could be transmitted to other persons) or where his or her health condition permanently restricted his or her ability to attend classes or to work.[14] This approach was in accordance with the Commission's premise[15] that persons with HIV/AIDS had to be accommodated in society to the extent that their infection did not expose others to significant risks that could not be eliminated by ordinary measures or reasonable adaptations.[16]
2.2.4 The medical and other facts would from occasion to occasion be decisive regarding continued school attendance and the management of school children with HIV infection. This would of course be possible only if the child's HIV status was known.
2.2.5 A call for the disclosure of AIDS-related information[17] could, however, be justified only if its confidentiality was ensured, and if it was not used as a basis for discriminatory behaviour against children with HIV infection.[18] This information could also be of real value only if there were clear policy guidelines regarding the management of children in respect of whom this kind of information had in fact been disclosed. The Commission took cognisance of national policy guidelines which had been issued in this regard in the United States of America (US).[19] They provide that with the consent of the infected child or his or her parent or guardian, additional persons could be notified (for instance the principal of the school concerned).[20] This small group of persons would then act as decision makers, who, according to the circumstances of each case, had to ascertain whether the infected child posed a "medically recognised risk"[21] to other children, whether such a child could continue with normal school attendance, and what measures had to be taken to ensure his or her and others' safety (for instance the application of universal precautions, and the suspension of his or her participation in contact sport). It was emphasised in these guidelines that the utmost confidentiality had to be observed throughout this process.[22]
2.2.6 South African legislation[23] which ensured the education of "handicapped" children would not necessarily include children with HIV.[24] It was also uncertain whether the 1993 interim Constitution[25] would provide protection to persons with HIV infection against unfair discrimination on the basis of "disability".[26] In the light of this the Commission was of the opinion that legislation could be employed to regulate the right to equal access.
2.2.7 The Commission noted that it was widely accepted that education and information regarding HIV and HIV transmission offer the greatest hope for containing the epidemic.[27] Early sexual activity and intravenous drug abuse by teenagers were recognised as important potential sources of HIV transmission.[28] In the light of this and of the general ignorance regarding HIV/AIDS[29] and the modes by which the virus is spread, especially among school children in South Africa,[30] the Commission was of the opinion that it was of cardinal importance that school going children receive information and education regarding HIV/AIDS and its prevention.
2.2.8 With regard to HIV/AIDS education in schools, a divergence of opinion among the then existing Education Departments on this issue was apparent[31] from evidence before the Commission.[32] The nature and extent of AIDS information to school children at that time varied between the supply of no information to full information.[33] With the exception of the then Department of Education and Training, the various former national education departments each issued policy guidelines concerning the management of HIV infection and AIDS in schools.[34] The premises of the different sets of guidelines were, however, not uniform in all respects: some were still based on the 1987 Regulations as discussed in paragraph 3.8 to 3.9 below, and others were aimed at AIDS education only.[35] It was clear that, for various reasons, most children in South Africa did not receive such education.
2.2.9 The Commission was aware of the fact, and it had been confirmed in evidence,[36] that HIV education was a controversial matter involving complex issues. Questions of philosophical, political and religious tenets, sex education and the appropriate age level at which this type of information should be supplied, arose. There was tension too between facts and moral judgments, and the participation of parents in the education process complicated the matter.[37]
2.2.10 The Commission concluded that a real need existed for a uniform national policy regarding HIV and AIDS in schools in which aspects such as continued school attendance, management of persons with HIV infection, confidentiality of AIDS-related information, and HIV/AIDS education were addressed.
2.3 The Commission at that time therefore made the following preliminary recommendations:
* That legislation should confirm -
* That the education authorities be compelled by legislation to provide AIDS information and education as part of the compulsory curriculum to primary and secondary school children, but that the parent or guardian of a child be permitted to refuse in writing that the child concerned attend such a programme.
* That the education authorities establish a clear and comprehensive national policy regarding the management of children with HIV infection. In such a policy document, aimed at the education corps, principles and practical guidelines should be set out and the confidentiality of AIDS-related information, continued education for children with HIV infection, the application of relevant universal precautions, and the supply of information and education on HIV/AIDS should be ensured.
2.4 Comments were received on Working Paper 58 between October 1995 and February 1996. Twenty four of the 49 comments received on Working Paper 58 as a whole included reference to HIV/AIDS in schools.
2.5 The Medical Association of South Africa, the Afrikaanse Handelsinstituut, and the City Health Department of the City of Cape Town unreservedly agreed with all the Commission's preliminary recommendations on HIV/AIDS in schools.
2.6 The Department of Education, Mrs ME Olckers (Member of the Executive Committee [MEC] for Education and Cultural Affairs, Western Cape), the Dutch Reformed Ministry of Caring, the AIDS Legal Network (ALN) and the Department of Health endorsed the Commission's recommendations in general. The Dutch Reformed Ministry of Caring however added that an infected child should only be accommodated if he or she does not pose a health risk to others and if his or her health condition does not permanently restrict his or her ability to attend classes or to work; and the ALN and the Department of Health emphasised that there was no need for school authorities to be notified of a child's HIV infection.
2.7 Two respondents commented on some of the recommendations only. The South African Association of Social Workers in Private Practice agreed that children with HIV should be permitted to attend regular schools while the South African Council of Churches believed that HIV testing in schools should be discouraged at all costs as this would perpetuate discrimination against black children in previously white schools.
2.8 Several commentators agreed with the recommendations of the Commission but expressed concern about the possibility of transmission of HIV in the course of contact sport.
2.8.1 NACOSA (Western sub-province of Eastern Cape), the ALN and the Department of Health submitted that proper regulation of contact sport had to take place. The ALN and the Department of Health added that precautions had to be taken with all wounds, and not just with those of children known to be infected.
2.8.2 The City Health Department of the City of Durban believed that more consideration had to be given to children at risk of exposure to blood in play situations and contact sport, and that the protection of the HIV negative child was essential. IL Hay (human resources manager) agreed with this and emphasised the risk of becoming infected in assisting an infected child in an accident. Mr RJ Elliott (on behalf of Sappi Health Advisory Committee) in general agreed with the recommendations, but believed that a teacher should be informed of the infection of children in his or her care, in order that uninfected children may be safeguarded against risk of infection.
2.8.3 The South African Nursing Council recommended that consideration be given to ensuring that all schools have the necessary information concerning universal precautions in cases of injuries or accidents involving school children.
2.8.4 AB Bluhm (private citizen) proposed that a principal should have the authority to prohibit an infected child from participation in sport, without making known his or her condition. The Association of Law Societies agreed that a child with HIV should be prohibited from taking part in contact sport.
2.9 A number of respondents generally supported the recommendations, but expressed concern about, or emphasised, sexuality education and AIDS education.
2.9.1 The Department of Community Health of the University of Cape Town welcomed the recommendation that education authorities be obliged to provide sexuality education.
2.9.2 The Department of Health and the ALN did not agree with the recommendation that parents should have the authority to withdraw their children from AIDS education, but believed that sexuality education should be both compulsory and examinable. The City Health Department of the City of Durban strongly supported the provision of AIDS information and education in schools and suggested that sexuality education be made compulsory and examinable.
2.9.3 Mrs ME Olckers supported the right of a parent or guardian to arrange that a child be excluded from HIV/AIDS education lessons, but believed that such parents should be compelled by the education authorities to provide suitable AIDS information and education to the child(ren) concerned. RJ Elliot argued that parents' right to prevent children attending an AIDS education programme should be the same as their rights in respect of any other part of the compulsory curriculum, and that parents should be given the opportunity to comment on the AIDS education programme content in order to win their support.
2.9.4 Rashid Patel and Company (attorneys) commented that the nature of the (AIDS) education to be given in schools should take into account existing moral, religious and social implications. They suggested that parents and other interested parties should be consulted when the curriculum is drawn up.
2.9.5 The Superintendent of the Sterkfontein Hospital proposed that principles of universal precautions (including the use of mechanical devices in mouth to mouth or nose resuscitation) needed to be taught to all care givers such as educators; that children should be told about AIDS to their level of understanding at an early age; that they should be taught how to manage a friend's bleeding nose or wound, and that programmes about the effect of drug abuse in schools should include the effects of intravenous drug abuse.
2.10 Two commentators were not supportive of the recommendations of the Commission.
2.10.1 Mrs Robin Collett (private citizen) expressed concern about the recommendation that children with HIV should be admitted to schools, and that no testing could take place to know who was infected and who not. She was also concerned about accidents on the playground and on the sport field and about young children not knowing how to protect themselves.
2.10.2 Dr HGV Küstner (former Director: Epidemiology, Department of National Health and Population Development), believed that to play down the risks of uninfected school children becoming infected at school, was dangerous, especially as the rates of infection were rising. He also questioned the "Western paradigm" which was followed in dealing with HIV. He referred to an address by Ms Dawn Mokhobo at an AIDS Congress in 1988 in which she outlined sexual attitudes amongst blacks (at that time) with special reference to AIDS and the problems concerning trans-cultural sexuality and AIDS education, which (according to her) militated heavily against the probability of successfully conducting effective health education programmes.
2.11 Business South Africa and the Chamber of Mines of South Africa accepted the broad principles of non-discrimination and confidentiality in the school context. They nevertheless believed that it should be left to the education authorities (and private education facilities) to determine their own admission criteria and curricula on matters such as HIV/AIDS education and drug abuse. Although both saw the merit of national guidelines for the management of school children with HIV infection, the Chamber of Mines of South Africa did not believe that HIV infection should be specifically catered for. In general the Chamber of Mines felt that a fair balance should be struck between the rights of infected persons and the rights of uninfected individuals, other legal persona and the community at large.
2.12 The project committee appointed in 1996 concluded from the responses received to the Commission's 1995 preliminary recommendations that from a scientific and medical viewpoint, the matter of HIV/AIDS in schools is relatively uncontroversial and that a large measure of consensus exists on the need for a national policy on HIV/AIDS in schools.
2.13 The well-publicised crisis caused by the application in early 1997 by Nkosi Johnson (an eight-year-old boy with AIDS) to be admitted to a public school in Johannesburg, the reaction of some members of the public and the apparent absence of a national education policy on this issue,[38] underscore the lesson that the practical situation has not improved since 1995. This is despite the fact that the South African Schools Act[39] (the Schools Act) was passed in 1996, giving effect to both the spirit and letter of the Constitution of the Republic of South Africa 1996[40] (the 1996 Constitution) by protecting learners from unfair discrimination and by guaranteeing them their rights to basic education and to equal access to public schools.[41]
2.14 In view of the Commission's initial work on the matter, the project committee has, since the Nkosi Johnson incident, engaged in extensive discussions and liaison with the Department of Education to ascertain whether and to what extent the Commission's 1995 proposals have been implemented, whether they were acceptable and whether the Commission could be of assistance in advancing resolution of the matter.[42] It was confirmed that the Department of Education, with the Department of Health, is in the process of developing ways to deal with HIV in schools and that the Department of Health favours the adoption of a national policy.[43] The project committee consequently compiled a discussion document (Discussion Paper 73) proceeding from the 1995 proposals (with the addition of a proposed national policy) in order to assist the Department of Education and the Minister of Education in developing solutions to the problem of HIV-related discrimination in schools and in order to conclude the work of the Commission initiated by the 1995 proposals. The proposals and policy in Discussion Paper 73 were developed in a joint consultative process with the Department of Education and were the result of input and guidance received from the Department.[44] By including this input, the project committee attempted to be responsive to the needs of the Department and to utilise the expertise at the Department's disposal.
2.15 Discussion Paper 73 was published for general comment in August 1997. Written comments were received from 66 respondents (a list of which is attached as ANNEXURE A). In general the comments reflected overwhelming support for a national policy on HIV/AIDS for schools.[45]
2.16 Senior officers of the Department of Education have again been included in the project committee's work when comments on Discussion Paper 73 were processed and the final recommendations and policy contained in the current interim report were formulated.[46]
2.17 AIDS is the acronym for "acquired immune deficiency syndrome". It is the clinical definition given to the onset of certain life-threatening infections in persons whose immune systems have ceased to function properly.[48] The condition is acquired in the sense that it is not hereditary - it is generally accepted that it is caused by a virus (HIV) which invades the body from outside. The genetic material of HIV (the abbreviation for "human immunodeficiency virus") becomes a permanent part of the DNA[49] (the genetic material of all living cells and certain viruses) of the infected individual with the result that this person becomes a carrier of HIV for the rest of his or her life (and can therefore infect other individuals). Moreover, HIV is unique in the sense that it attacks and may ultimately destroy the body's immune system. Consequently, the body's natural defence mechanism cannot offer any resistance against illnesses, even those that normally do not involve an extraordinary danger to healthy people. Syndrome implies a group of specific symptoms that occur together and that are characteristic of a particular pathological condition. AIDS is described as a syndrome precisely because it does not manifest itself as one disease. It is rather a collection of several conditions that occur as a result of damage which the virus causes to the immune system. Persons thus do not die of AIDS as such. They die of one or more diseases or infections (such as pneumonia, tuberculosis or certain cancers) that are described as "opportunistic" because they attack the body when immunity is low. AIDS can therefore be defined as a syndrome of opportunistic diseases, infections and certain cancers that eventually cause a person's death.
2.18 Infection of a person with HIV does not necessarily entail that a person is sick. A person with HIV infection can remain otherwise healthy and without symptoms for a number of years.[50] He or she can live without notice of infection. HIV infection during this period is called asymptomatic infection.[51] During asymptomatic infection a person is capable of performing all of his or her daily activities, and can thus lead a full and productive life.[52] At this stage the person does not have AIDS. A person has AIDS only when he or she becomes ill as a result of one or more opportunistic illnesses. AIDS is the final clinical stage of HIV infection.[53]
* Transmission of HIV[54]
2.19 As soon as a person is infected with HIV he or she is able to transmit the infection to other people irrespective of whether the infected person shows any symptoms at that stage. However, HIV is not easily transmitted (in contrast with many other serious diseases such as certain sexually transmitted diseases and certain other viral infections[55]).
2.20 HIV has been identified in blood, semen, vaginal and cervical discharge, breast milk, the brain, bone-marrow, cerebrospinal fluid, urine, tears, foetal material and saliva. However, current scientific knowledge indicates that only blood, semen, vaginal and cervical discharge and breast milk contain a sufficient concentration of the virus to be able to transmit HIV. Transmission can occur only through specific and limited routes.
2.21 At present no scientific evidence exists that HIV can be transmitted in any other mode than the following:
2.22 To infect a person, HIV must reach the blood stream or lymphatic system. HIV may possibly be transmitted via mucous membranes.[58] The virus cannot be spread by other forms of personal contact than those described above. Outside the human body and especially outside body fluids, HIV has an extremely limited life span of a few seconds only.[59] The virus is also destroyed by disinfectant.[60]
2.23 There is thus no risk of HIV transmission from casual contact. HIV cannot be transmitted by daily social contact such as breathing, coughing, shaking hands or hugging. It cannot be transmitted through food preparation, by toilet seats, or by sharing food, water or utensils. Even if blood contact did take place, the chances of being infected are small. (The incidence of infection, for instance, among health care workers who received injuries from needle sticks and other sharp objects contaminated with blood known to be HIV infected, is calculated to be approximately three in 1 000.[61] Where the status of the blood was not established, but surgical procedures were prone to expose a person to blood, the risk of infection was considered to be at most one in 42 000.[62])
2.24 Not every person exposed to HIV becomes infected. Similarly, it is possible that not every person who is infected with HIV eventually develops AIDS. Scientists are as yet uncertain of the precise position.[63] There is apparently reasonable consensus that 45-50% of infected persons will develop AIDS after 10 years, but it has also been estimated that between 65-100% of infected persons are likely to develop the disease within 16 years.[64]
+ Transmission and incidence of HIV in children
2.25 The ways in which children can become infected with HIV are by vertical transmission (perinatally from mother to baby); receiving infected blood, blood products or organs; intravenous drug abuse, early sexual activities[65] and sexual abuse.[66] Breastfeeding has been implicated for being responsible for a dramatic increase in vertical transmission of HIV.[67]
2.26 Amongst children the most important route of HIV transmission by far is vertical transmission.[68] According to statistics available towards the end of 1995[69] vertical transmission was at that time responsible for approximately 11% of the total number of AIDS cases[70] and was constantly increasing. In 1992 the prevalence of pediatric AIDS in South Africa was already reported to be very high in comparison with that of the US, the situation in South Africa corresponding with that in other African countries.[71] It is accepted that vertical transmission increases at the rate at which heterosexual transmission of HIV increases.[72] Estimates based on the eighth national HIV survey carried out in South Africa at the end of 1997, are that 16,01% of women attending antenatal clinics of the public health services nationally were infected with HIV by the end of 1997.[73] Compared to the infection rate of 14,17% of 1996, the prevalence level of HIV infection increased by 12,99% during the past year.[74] At the end of 1996 it was estimated that 1,4 million women were infected with HIV, and that almost 58 000 HIV-infected babies were born in 1996 (4% of the total of 1,34 million babies born during that year).[75] The number of babies with HIV born between 1990 and end 1996 is estimated to be 157 000.[76]
2.27 Recent national and international studies of HIV seroprevalence reveal that adolescent females are now being infected at increasing rates as a result of early sexual activity - in some developing countries at rates higher than those reflected in respect of adults.[77] The eighth national HIV survey carried out in South Africa at the end of 1997, indicated that the 20-24 year group was the group most infected (19,67%), closely followed by the 25-29 year old group (18,18%). Of teenagers attending antenatal clinics, 12,90% tested HIV positive during 1996, compared to 9,5% a year earlier.[78] This figure is of particular concern as pregnancies at such a young age are often unplanned. It reveals sexual activity (experimenting) and an increased risk of contracting HIV amongst children of secondary school age.[79] It is now being realised that most young adults were infected during adolescence and that certain behavioural and psychological factors put adolescents at high risk.[80] These factors include exploration of sexual identity, an unrealistic view of the future, a sense of immortality, irresponsibility and lack of knowledge about sexuality.[81] Statistics indicate that adolescents and young adults account for a disproportionate share of the increase in HIV/AIDS infection in South Africa.[82]
2.28 Because of the high incidence of rape and sexual abuse involving children, these crimes are ways in which children can become infected with HIV.[83] Researchers found that children and adolescents who are subjected to sexual abuse are increasingly found to be infected with HIV.[84] This is regarded as a disturbing feature of the whole scenario of HIV infection.[85]
2.28.1 The risk of HIV transmission related to sexual abuse is borne out by statistics on the incidence of rape, sodomy and incest involving children in South Africa.[86] Several respondents to Discussion Paper 73 emphasised the increasing risk of HIV transmission caused by sexual abuse of children.[87] The dangerous myth that sex with a virgin or a young girl will either cure or prevent AIDS has also stimulated an increase in child sexual exploitation.[88] Furthermore, increasing numbers of AIDS orphans who have to take care of younger siblings turn to the option of selling their bodies.[89] In a 1996 Human Science Research Council/Child Protection Unit Study on patterns of child abuse, 42% of the sexually abused children came from female-headed families. It was pointed out that black single women have no decision-making power and that the children of these women are accorded a very low status which would make them especially prone to sexual exploitation.[90]
2.29 Intravenous drug abuse as a route of infection has received scant attention in South Africa. Of the 8 784 cases of clinical AIDS reported as on 30 November 1995, only 3 were a result of intravenous drug abuse.[91] This route should nevertheless be recognised as an important potential source of HIV transmission.
* Course of AIDS[92]
2.30 The course of HIV infection is generally divided into four different stages: the acute or initial phase; the asymptomatic phase; the third phase (during which less serious opportunistic diseases occur); and the final phase during which the patient has full-blown or clinical AIDS.
+ Initial phase: Preceding seroconversion
2.31 The initial phase begins very shortly after a person has been infected with HIV. Symptoms that present are similar to those of influenza (fever, night sweats, headaches, muscular pain, skin rashes and swollen glands). This phase continues until seroconversion occurs (when antibodies develop in the person's blood in an ineffective attempt to protect the body against HIV). Seroconversion takes place on average six to twelve weeks after exposure (in exceptional cases even later). This period between infection and seroconversion is known as the "window period". Blood tests[93] generally used to determine whether a person has been infected with HIV cannot trace HIV itself, but react to the presence of antibodies. The fact that antibodies are formed only after a lapse of time entails that blood tests conducted during the window period may deliver false negative (seronegative) results. Where antibodies have not yet developed, the blood test for antibodies will be negative in spite of infection. During the window period an infected person can transmit HIV but will not test positive for the virus.
Second phase: Asymptomatic seropositivity
2.32 During this phase the person is infected with HIV; antibodies have already developed and will be indicated by antibody tests from this stage onwards; but he or she shows no symptoms of illness. However, the body's resistance and immune response are slowly being impaired. This second phase can continue for many years while the infected person remains otherwise healthy. In this phase infected persons are often not aware that they have HIV; they can therefore unknowingly transmit the virus to others.
+ Third phase: AIDS-related symptoms
2.33 This phase (referred to in the past as "AIDS-related complex" [ARC]) can also continue for several years. Symptoms of the opportunistic diseases that cause death in the final phase now occur. These include swelling of the lymph glands in the neck, groin and armpits as well as drastic loss of body weight, thrush and chronic diarrhoea.
+ Final phase: Clinical AIDS
2.34 Only during the final phase can a person be said to have AIDS. As a result of the compromised immunological response because of the HIV infection, a person during this stage is prone to infections by organisms that normally are present but do not cause disease in otherwise healthy and uninfected persons. This type of infection is referred to as opportunistic infection. In this phase such a person's body is no longer capable of withstanding opportunistic diseases, the symptoms of which were observed in the preceding phase. Unless effectively treated the person may no longer be able to work productively. He or she usually dies within two years as a result of these diseases.
2.34.1 Diseases that generally occur are pneumonia, tuberculosis and Kaposi's sarcoma (a rare type of skin cancer). Neurological and psychiatric disorders (known as AIDS dementia) may also occur in this final phase (and in rare cases may occur also earlier).[94] Symptomatic presentation differs from continent to continent. The most important opportunistic diseases in Africa are tuberculosis and chronic diarrhoea. A form of pneumonia (caused by Pneumocystis carinii [PCP]) is responsible for the majority of deaths among persons with AIDS in Europe and North America.[95] However the disease conditions from which people with AIDS suffer are generally not transmissible. Persons with AIDS usually pose no threat of infecting others with opportunistic diseases as opposed to the transmission of HIV itself. A notable exception is untreated tuberculosis. Tuberculosis is transmissible in itself.[96] It is thus important that patients with pulmonary tuberculosis be on treatment so as not to expose others to active disease.[97]
2.35 The course of HIV infection varies from person to person. The period before seroconversion can last on average from six to twelve weeks. The average duration in Africa of the asymptomatic phase is estimated to be seven years, and it is generally accepted that the average period of time from infection with HIV until full-blown AIDS develops is less than 10 years. The final phase lasts on average from one to two years. However, the life expectancy of persons with HIV differs according to their general state of health, their living conditions, available health services and treatment, and the opportunistic disease in question. Although the course of the disease follows the same overall pattern in developed and developing countries, the period between becoming infected and death is much shorter in the latter. This can probably be ascribed to the prevalence of endemic diseases (for instance tuberculosis) and to a lack of adequate medical treatment.[98] In South Africa, severe poverty and malnutrition could possibly be included as reasons why patients with HIV have a shortened life expectancy.[99]
2.36 Not all persons with HIV go through all four phases. Some do not even show symptoms before they develop clinical AIDS (the final phase). During periods of symptomatic infection, a person with HIV may be able to live and work actively, but may experience fatigue or brief periods of illness.[100]
2.37 In regard to the typical course of the disease, the window period, the long latent phase and the occurrence of AIDS dementia especially, have particular implications for the law and ethics.
+ Course of AIDS in children
2.38 As far as the course of the disease in infants who acquire HIV perinatally is concerned, symptoms appear in 80% of actually infected babies by approximately six months after birth.[101] The earlier symptoms and disease appear, the more likely an infant is to die at a very young age. This is because the infant's immune system is not fully developed and immunity to many diseases has not yet been acquired.[102] It has also been found that in infants whose infection is maternally acquired, the rate of disease progression varies directly with the severity of the disease in the mother at the time of delivery: the further the course of AIDS has developed in the mother, the higher the risk of death for her child.[103] By the end of their first year of life 25%-33% of these children have already developed full-blown AIDS or have already died of some or other AIDS-related infection. This scenario will improve with advances in testing techniques, more effective intervention[104] and aggressive early treatment.[105] Although progression of the disease in the remaining 66%-75% of children is slower,[106] some scientists estimate that the life-spans of most infected children are shorter than three or four years.[107] In South Africa the majority of children with HIV are unlikely to reach school going age.[108] However, recent studies show that some children with HIV may remain symptom-free up to the age of seven years[109] and will therefore reach school going age. In other cases, despite the onset of symptomatic AIDS, children may survive to reach school going age.
2.39 In a study done at the then Baragwanath Hospital, it was found that children with HIV presented with complaints including lymphadenopathy, failure to thrive, respiratory distress, pneumonia, cardiac involvement, serious bacterial infections and neurodevelopmental abnormalities.[110] In a similar study at the King Edward VIII Hospital in Durban, it was found that the main presenting complaints in small children with HIV (those between three months and 30 months of age) are chronic cough, persistent diarrhoea and vomiting.[111] According to Lachman changes in behaviour or poor cognitive and cerebellar functioning during the first year of life may be the first clues to HIV infection.[112] Data from Ga-Rankuwa Hospital mention clinical presentations such as failure to thrive, diarrhoea and gastro-enteritis, recurrent chest infections, tuberculosis and pneumonia, kwashiorkor, and generalised lymphadenopathy. Other symptoms reported include candidiasis, vomiting, meningitis, stomatitis, and perianal rash.[113] Failure to gain weight and height at the expected rate is a significant symptom during puberty.[114] The main obstacle to diagnosis is that some of these presenting symptoms are also the most frequent causes of morbidity and mortality among Third World children in general.[115] However, the most disturbing manifestation of HIV infection in children, and perhaps the most devastating, is neuro-psychological deterioration with loss of developmental milestones and intellectual function which occur in most patients.[116]
2.40 Children with HIV who are in the asymptomatic phase are capable of performing all the daily activities and to attend school. When they became ill as a result of the opportunistic diseases mentioned above, and have AIDS, this may no longer be possible. Their ability to work and to attend school may be severely restricted.
* Testing for HIV[117]
2.41 The most general manner in which it can currently be determined whether a person is infected with HIV is by blood tests for the presence of antibodies to HIV. Although available, blood tests to detect HIV itself (in contradistinction to the test for antibodies) are not at present generally used in the public sector.[118]
2.42 The blood tests that have been used throughout the world since 1985 to detect the presence of HIV antibodies are the enzyme-linked immunosorbent assay (ELISA) and the Western Blot (WB) tests.[119] The ELISA test for HIV antibodies is very sensitive and reacts beyond the window period positively to nearly any infection. Because of its high sensitivity, a single test can deliver a false positive result. For this reason it is necessary to carry out a second, more specific, test to confirm HIV positivity. It is also advisable to perform the tests on a second, different, blood specimen. The WB test, which is such a more specific test, is traditionally used to confirm an initial positive test. However, the WB is expensive[120] and can therefore not always be used in practice. Different types of ELISA tests with a higher degree of specificity have consequently been developed and the World Health Organisation (WHO) has compiled guidelines which indicate the circumstances under which multiple (different types of) ELISA tests will suffice in order to establish HIV infection.[121] South Africa has accepted the WHO recommendations to diagnose HIV infection with at least two positive ELISA test results.[122]
2.43 The result of a blood test to detect HIV antibodies is potentially available within approximately 24 to 48 hours after the blood sample is taken.[123]
2.44 Currently a positive HIV antibody test means that the person concerned is infected with HIV, will remain infected for life, and can infect other persons. The ELISA and WB tests do not indicate the stage of infection which the person tested has reached. A negative HIV antibody test means that no antibodies to HIV have been traced in the blood of the person concerned. This could mean that the person is not infected. But it could mean merely that antibodies to the virus have not yet developed[124] and thus he or she is infected but is in the window period. To obtain a reliable result such a person will after a period of time have to be tested for HIV again.[125]
2.45 It is alleged that where the standard test procedure (an ELISA test followed by one or more confirmatory tests) is followed, a correct result will be obtained in more than 99% of HIV infections.[126] New tests are available that test for HIV itself, rather than antibodies to the virus.[127] These may shorten the window period to about 16 days.[128] In addition, some of these tests (for instance viral load tests[129]) may more accurately predict future health status.[130] However, because of their cost they are not yet recommended for general use.[131] Tests which detect HIV in the urine, and saliva may be less sensitive than tests on blood. The polimerase chain reaction technique (internationally known as the PCR), which detects the virus itself in the blood, is also available. It is however, complicated and difficult to execute and is thus performed only in specialised or reference laboratories.[132] PCR may reduce the window period to 11 days.[133]
+ HIV testing of children
2.46 The same blood tests to detect the antibodies to HIV in adults, discussed above,[134] are generally used in respect of children. However, the use of the antibody test in respect of infants have specific implications.
2.47 It is said that approximately 50% of babies born of mothers with HIV will carry antibodies to HIV at birth.[135] However, some of these babies will merely reflect the mother's HIV status and will not themselves be infected. The problem is complicated by the fact that the mother's HIV antibodies can be reflected in the baby up to an average age of 15 to 18 months and that the real state of affairs regarding the HIV status of such a baby can be established with certainty only then.[136] The polimerase chain reaction technique (PCR), referred to above,[137] may be used to detect the virus itself in the blood of newborn babies. However, as indicated above, this test is not generally used. Scientific estimates of the percentage of births to mothers with HIV where HIV transmission occurs differ and estimates of 7%-39%,[138] 15%-40% (in respect of European and American studies),[139] and even as high as 60% (in respect of studies done in Africa)[140] have been recorded. The rate of transmission for South Africa is currently accepted to be around 30%.[141] The accuracy of a negative test result in a newborn baby is likewise uncertain. It is, however, generally accepted that if a baby still tests negative by the age of three months, it will not have HIV.[142]
* Treatment
2.48 There is at present no cure for HIV infection or AIDS. The best-known drug for the treatment of persons with HIV infection and AIDS, until recently has been AZT (zidovudine).[143] This drug does not cure AIDS, but brings temporary relief for persons with symptomatic HIV infection: AZT delays the increase of HIV in the body, decreases the number of opportunistic infections and increases the number of healthy cells.[144] New treatments are currently being developed that extend the life expectancy of people with HIV and AIDS.[145] Many of these are expensive.[146] Not enough is yet known about their long term efficacy. There is some hope that HIV and AIDS may eventually, for those who can afford treatment, become manageable in ways similar to diabetes, epilepsy, and heart disease.[147]
+ Treatment of children
2.49 HIV infection in children can be managed by anti-HIV drugs. These include AZT which is available as a syrup and is well tolerated by children. (It has, however, been suggested that drugs used to treat HIV may cause side effects which can lead to aggressive behaviour, and that educators should be aware of this.[148]) Prophylactic treatment is strongly recommended against opportunistic and bacterial infections (such as immune globulin therapy after exposure to chickenpox or measles). Complications can be treated. Other regimes include optimum nutrition, physiotherapy for lung disease and supportive measures for developmental problems.
2.50 It has been suggested that infected children should receive all immunisations, with certain provisos.[149] Children with HIV have an increased risk of acquiring, or developing complications from several diseases for which vaccines exist.[150] They can actually benefit from immunisation to protect them against such common, naturally occurring diseases before their immune defence mechanisms are further compromised.[151]
[8] This research was reflected in par 3.163-3.179 of SALC Working Paper 58 published by the SALC in September 1995.
[9] Par 3.171 -3.179.
[10] AIDS The Legal Issues 192-194; Someone at School has AIDS 5; Ontario Report 44-45.
[11] Van Wyk 1988 THRHR 328; Jarvis et al 78-79.
[12] Act 200 of 1993.
[13] The 1993 Constitution, sec 32 and 8(2).
[14] Cf sec 33 of the 1993 interim Constitution; cf also AIDS The Legal Issues 196-197 and Someone at School has AIDS 8-9.
[15] Cf par 2.21 of SALC Working Paper 58. A number of premises were adopted by the Commission, inter alia, that AIDS is a unique condition, that information and education should play a primary role in any strategy for the prevention of AIDS, that the 1993 interim Constitution did not necessarily apply between private parties and that measures taken should not discriminate unfairly against infected persons.
[16] Cf eg the position in England where guidelines indicate that children with HIV are permitted freely to attend school and that they should be treated in the same way as other pupils (Viinika HIV Infection and Children in Need 49). In Canada too, the Ontario Law Reform Commission recommended in 1992 that compulsory testing of school children for HIV, as well as any prejudicial treatment of HIV infected school children would be unjustified (Ontario Report 44-45). In the United States of America (US) the position differs from state to state. In general it can be said that if legislation in a specific state requires that children of a certain age attend school, such children could be excluded from attending school only if the exclusion is justified (Jarvis et al 80-82). In this regard it was held that there was no rational basis for a school to exclude children known to have HIV (District 27 Community School v Board of Education 502 NYS 2d 325, 130 Misc 2d 398 [NYSCt 1986]), 82, 86, 92; see also Jarvis et al 82-84). The rationale behind this decision was that since it was likely that there were other children with HIV attending school, whose identity was not known to school authorities and who posed the same minimal risk of infection, it would not be rational to exclude only those children of whose condition the authorities were aware. Furthermore, legislation at state and federal levels aimed at discrimination against the disabled in general (eg the Vocational Rehabilitation Act, 1973, and later the Americans with Disabilities Act, l990), as well as federal legislation dealing with the education of disabled children, is the main source of protection for pupils with HIV (Someone at School has AIDS 24-25; Jarvis et al 84-85). Sec 504 of the Vocational Rehabilitation Act 1973, which applies to virtually all public schools in the US, prohibits discrimination against the disabled who are "otherwise qualified" (Jarvis et al 88; AIDS The Legal Issues 200; Someone at School has AIDS 24). In the context of contagious diseases and school attendance this provision has been interpreted by the US Supreme Court in School Board of Nassau County, Florida v Arline (480 US 273, 94 L ed 307 [1987]) so as to provide maximum protection for persons with contagious diseases against one or another form of discrimination (eg exclusion from attending school) when the infection does not pose a significant risk of transmission to others (Jarvis et al 90-91). This principle has been applied by the lower federal courts in several decisions in instances where HIV infection was in issue (Jarvis et al 90-91). The Education for All Handicapped Children Act, 1975, further protects the right of disabled children to a free and appropriate public education (AIDS The Legal Issues 197; Someone at School has AIDS 24). The education of a disabled child who falls under this Act is to be integrated in the normal school programme if it would not significantly disrupt the programme of other pupils or create significant risks to other pupils (Jarvis et al 86). However, it was held that this legislation is not in general applicable to pupils with asymptomatic HIV infection (District 27 Community School Board v Board of Eduction supra; see also Jarvis et al 86) and in cases where it is applicable (eg because of complications resultant from HIV infection) such a child should be accommodated to the extent possible in the regular school programme consistent with the known low risk of transmission of HIV in the school environment (cf Jarvis et al 88).
[17] Although the disclosure of AIDS-related information in school context is made compulsory by the 1987 Regulations (see reg 7(1)(a) and (2)), this position will probably change in the near future. For more detail see par 3.8 - 3.9 below.
[18] In the US provision has, for instance, been made in certain states that the health authorities to whom HIV infection or AIDS is reported, must disclose this information to school principals (U S State AIDS Laws 1988 2). The US national education authority has, furthermore, issued a comprehensive, uniform policy document with guidelines to principals on what should be done with this information, and how children with HIV infection should be managed (Someone at School has AIDS 8, 10-16, 18-24). The guidelines make it clear that pupils with HIV infection may not be discriminated against and that the highest degree of confidentiality regarding AIDS-related information should be maintained. They also contain directions as to which persons may be informed of the HIV status of a pupil and how his or her continued school attendance should be decided upon; what the policy concerning testing of pupils for HIV is; which universal precautions should be applied in the school environment and which guidelines regarding AIDS education and information should be followed. See also AIDSScan December 1992 9 for the successful school placement policy for children with HIV in the city of Baltimore. Important policy components include strict protection of confidentiality, clinical investigation of each case, a review panel, a restricted setting for certain children, a school site visit for each placement, and continued monitoring of the school placement by school nurses. According to guidelines for education services in England, persons informed of the HIV status of a pupil should be strictly limited to "those that need to know" (Viinikka HIV Infection and Children in Need 49).
[19] In the guidelines it was proposed that if the education authority was notified that a pupil was infected with HIV, decisions concerning the management of such a pupil had to be taken by the authorities in co-operation with the pupil him- or herself, his or her parent or guardian, the pupil's personal doctor and a public health official. Depending on the directions regarding the notifiability of HIV infection in the state concerned, it would not always be necessary to identify a pupil by name to the public health official (Someone at School has AIDS 8, 10-16, 18-24).
[20] Ibid.
[21] Ibid 10 (the presence of a secondary infection like tuberculosis, may constitute such a risk).
[22] Ibid.
[23] See fn 173 below.
[24] Cf also the comment in AIDS The Legal Issues 99 and Jarvis et al 88 in respect of similar legislation in the US.
[25] Sec 8(2).
[26] See par 2.17 of SALC Working Paper 58. In this paragraph the question whether HIV infection as such would constitute a disability for the purposes of sec 8(2) of the 1993 interim Constitution, was discussed.
[27] Lamers AIDS: Principles, Practices and Politics 182; cf also Reducing the Risk 10; WHO AIDS Series 10, 1.
[28] Jarvis et al 93.
[29] Cilliers AIDS in Context 75-76; Visser et al AIDS Research Feedback 1993 7.
[30] Visser 1995 SAJE 130-138. See also Mathews et al 1990 SAMJ 511-516; Karim et al 1992 SAMJ 107-110. It was also found that (female) college students are in need of better education about protection against sexually transmitted diseases (STD's) and AIDS (study quoted in AIDSScan June 1992 7).
[31] This divergence was already evident from a survey conducted at the end of 1987. See Cilliers AIDS in Context 77-83.
[32] Evidence before the Commission on 15 April 1994 on behalf of the Department of Education and Training and the Education and Culture Service (Ex Administration: House of Assembly).
[33] In respect of children in public schools under the former Transvaal, Orange Free State and Natal Provincial Administrations AIDS information and education had for some time been part of the compulsory curriculum from standard two to matric. Parents were informed about these programmes and had to give their written consent for the transmission of "sensitive information" (evidence before the Commission on 15 April 1994 on behalf of the Education and Culture Service [Ex Administration: House of Assembly] and the former Transvaal Education Department). In the case of children in public schools under the former Cape Provincial Administration, AIDS information and education were at that time supplied on an experimental basis to selected groups (evidence before the Commission on 15 April 1994 on behalf of the Education and Culture Service [Ex Administration: House of Assembly]). In the case of children in public schools under the Department of Education and Training, AIDS education had not yet been supplied to pupils, and a start had just then been made with the education of teachers in this regard. Problems were experienced with the presentation of AIDS information as part of the compulsory curriculum, with supply of personnel for this purpose and with the funding of an information and education programme (evidence before the Commission on 15 April 1994 on behalf of the Department of Education and Training). In respect of children in public schools under the Department of Education and Culture, Administration: House of Delegates, AIDS education and information had to be supplied to all children with the consent of their parents, but the presentation thereof as part of the compulsory curriculum or only on an after-hours basis was left in the discretion of school principals (AIDS Education E C Circular No 32 of 16 August 1991 [Department of Education and Culture, Administration: House of Delegates]). In respect of children in public schools under the former Department of Education and Culture, Administration: House of Representatives, an intensive education programme regarding HIV for pupils was prescribed - guidance about such a programme and its implementation were left to individual school principals (VIGS-beleid vir Skole Onderwysbulletin: S5/93 November 1993 [Department of Education and Culture, Administration: House of Representatives]).
[34] AIDS Education E C Circular N0 32 of 16 August 1991 (Department of Education and Culture, Administration: House of Delegates); VIGS-beleid vir Skole Onderwysbulletin: S5/93 November 1993 (Department of Education and Culture, Administration: House of Representatives); Die Hantering van Persone met HIV en VIGS en die Voorkoming van HIV-besmetting Riglyne vir Opvoedkundige Inrigtings Mei 1993 (Department of Education and Culture, Administration: House of Assembly). According to evidence before the Commission some of the former Provincial Education Departments also issued additional guidelines concerning the management of HIV and AIDS in schools (evidence by Prof J Lötz, Education and Culture Service (Ex Administration: House of Assembly) on 15 April 1994 - cf in the latter regard inter alia "Chapter 44 School Health and Dental Services" in the TED Manual for General School Organisation.
[35] According to information, the compilation of national guidelines with a view to an uniform policy, was at that time being considered (information supplied to the researcher on 23 August 1994 by Prof J Lötz, Education and Culture Service [Ex Administration: House of Assembly]).
[36] Evidence by representatives of the Department of Education and Training, Education and Culture Service (Ex Administration: House of Assembly) and the former Transvaal Education Department on 15 April 1994; cf also AIDS The Legal Issues 204-205.
[37] Cf AIDS The Legal Issues 204-205. In England for instance, legislation has empowered school governing bodies since 1986 to decide whether, and, if so, in what form, sex education (which provides a forum for education regarding HIV) should be provided at a specific school. It is essential that the governors approve the syllabus for sex education. Parents must be consulted on the matter and are allowed to withdraw their children from these lessons. Education about HIV has been introduced into the national education curriculum as part of the science syllabus since 1992. This might possibly be a way of ensuring that (notwithstanding the view of the governors) children are educated on HIV in a subject area which is beyond the control of the governors. According to the literature, this procedure has, however, already elicited controversy (Viinikka HIV Infection and Children in Need 51-52). Since as far back as 1986 the US government has called for compulsory sex education (which includes information regarding HIV/AIDS) in schools. Consequently, compulsory education regarding HIV/AIDS has been instituted by way of legislation in various states, but as a result of the controversy which accompanies this, it has been provided in some states that parents may withdraw their children from these programmes. In certain educational circles it was, for instance, believed that AIDS education must be explicit in order to be effective. This elicited so much controversy that the use of federal funds for "offensive" AIDS education material was prohibited, and the screening of such material by community bodies was required (Jarvis et al 93-96; AIDS The Legal Issues 203-205; Reducing the Risk 3-4).
[38] The application on behalf of Nkosi Johnson and the dearth of policies on provincial or national level on this issue, were reported in the Sunday Times 23 February 1997; Sowetan 25 February 1997; Beeld 28 February 1997; and Sunday Times 2 March 1997. The latter newspaper also discussed the case of a Grade 11 learner who was kept in isolation in a school hall and then suspended because she was suspected of having HIV.
[39] Act 84 of 1996.
[40] Act 108 of 1996.
[41] Cf the joint statement by Prof SME Bengu, Minister of Education and Dr ND Zuma, Minister of Health of 25 February 1997 in which the following was said: "We are disturbed by the reaction of some members of the public to an eight year old HIV positive child's attempt to exercise his democratic right to attend a public school. This occurs in spite of the constitutional stipulations and new education legislative framework ... (which) gives effect to both the spirit and letter of the Constitution by protecting and guaranteeing the rights of all learners to basic education and equal access to public schools ... Any attempt to deny a child admission to a public school on the basis that he or she is HIV positive is a gross violation of that child's rights as guaranteed by the Constitution. We want to state categorically that no governing body has the right to deny a child access to a public school ...".
[42] The Commission's 1995 proposals were again brought to the Department of Education's attention for consideration at a Departmental meeting on 27 February 1997 through informal discussions between Prof T Nhlapo (full-time member of the Commission and member of the project committee) and Ms S Sisulu (ministerial adviser, Department of Education).
[43] This was confirmed, on behalf of the Department of Education, by Dr TA Coombe (Deputy Director-General: Education Services) in a telephone conversation with the researcher on 5 March 1997; and on behalf of the Department of Health, by Dr Glaudine Mtshali (Chief Director: National Programmes and member of the project committee) at the project committee's meeting on 6 March 1997. Dr CCP Madiba (Chief Director: Education Systems and Co-ordination) indicated at a project committee meeting on 25 March 1997 that the Commission's consultation process would greatly assist the Department of Education in formulating and finalising a national policy.
[44] The project committee's provisional draft discussion paper and proposed national policy were considered and discussed with senior members of the Department of Education (Dr CCP Madiba, Chief Director: Education Systems and Co-ordination and Dr M Lane, Chief Educational Specialist) at the project committee's meeting on 25 March 1997. The provisional policy was further deliberated at a Branch Meeting of the Department of Education on 4 April 1997 attended by Ms Ann Strode (project committee member). Further comment on the provisional draft (which included comment from the Department's Curriculum Task Team) was contained in departmental letter 1/2/3 of 23 April 1997 addressed to Mr W Henegan, Secretary of the Commission.
[45] The comments are recorded in Chapter 5 and evaluated in Chapter 6 of this interim report.
[46] Senior officers of the Department of Education (Adv E Boshoff, Director: Legal Services and Legislation; Dr M Lane, Deputy Director: Legal Services and Legislation; and Dr N Louw, Member of the National Task Team: Life Skills and HIV/AIDS Education Programme) were consulted informally on 24 February 1997 by Prof Christa van Wyk (project committee member) and the researcher in preparing the draft for this interim report. The draft was thereafter submitted to the Department and considered in conjunction with senior officers of the Department (Dr TA Coombe, Deputy Director-General: Education Services; Dr CCP Madiba, Chief Director: Education Systems and Co-ordination; and Dr M Lane Acting Director: Legal Services and Legislation) at a project committee meeting on 14 March 1998. Dr Coombe indicated at this meeting that the Education Department profoundly appreciates the work done by the Commission and stressed that the Department would not have been able to do it on its own in the way it was done (which included publication of a discussion paper and draft national policy for comment).
4[7] This chapter consists mainly of edited extracts from SALC Working Paper 58 (cf par 1.4 - 1.25, par 3.122- 3.124, par 3.143 - 3.146 and par 3.163 -3.179). Virtually every source consulted for the purposes of this investigation presents the medical and empirical facts (as known at the time) with regard to AIDS - some more comprehensively than others. For purposes of this document a relatively simple and synoptic description of HIV/AIDS is presented. South African sources consulted in this regard include the following: AIDS Unit Strategy 1991 1-13; Arendse 1991 ILJ 218-219; De Jager 1991 TSAR 212-216; FitzSimons Facing up to AIDS 13-33; Swanevelder Epi Comments May 1992 80-92; Van Dyk 1-22; Van Wyk 1-80; Van Wyk 1988 De Jure 326-329; Van Wyk 1988 THRHR 317-320; Whiteside Facing up to AIDS 3-12. Foreign sources consulted on the medical background of AIDS include: Australia Report on Privacy and HIV/AIDS 9-12; Green AIDS and the Law 28-36; Gunderson et al 9-29; Jarvis et al 5-26; Miller 1-20; Volberding AIDS: Principles, Practices and Politics 97-112; Krim AIDS an Epidemic of Ethical Puzzles 15-20; Carr AIDS in Australia 2-23; Crofts AIDS in Australia 24-32; Gostin AIDS and Patient Management 3-8.
[48] For a complete discussion of medical aspects of HIV and AIDS, see Abrams et al AMFAR AIDS/HIV Treatment Directory June 1996 135-137. See also Nolan AIDS an Epidemic of Ethical Puzzles vii; De Witt 8; Evian 4-9.
[49] DNA is the abbreviation for "deoxyribonucleic acid".
[50] Gostin et al 1986 AMJLM 8.
[51] Ibid.
[52] See also par 2.32 and 2.40 below.
[53] Although some scientists apparently no longer wish to differentiate between persons with HIV and AIDS (cf Van Wyk 25), this differentiation is nevertheless maintained in the majority of sources consulted and is explicitly accepted in Canada and Australia where recommendations for law reform were made in 1992 (Ontario Report 6-7; Australia Report on Privacy and HIV/AIDS 9).
[54] See the sources referred to in fn 47 above.
[55] Eg hepatitis B (Van Dyk 22).
[56] In comment on Discussion Paper 73, the Department of Health pointed out that this mode of transmission is extremely rare and that "blood transfusion in South Africa is as safe as it could possibly be". The Department also pointed out that Factor XII is heat treated.
[57] Intravenous drug users inject drugs directly into their bloodstream. To ensure that the needle has struck a vein, they usually draw blood into the syringe before the drug is injected (without removing the needle). Thus a small amount of blood always remains in the needle and/or syringe and is consequently injected directly into the bloodstream of the next injector (Van Dyk 18).
[58] Recently a case was reported in the US of HIV transmission as a possible result of deep kissing. Both the man and the woman involved however had mouth lesions and blood stained saliva (CDC Morbidity and Mortality Weekly Report 11 July 1997 620 et seq).
[59] Researchers say HIV can stay alive outside the body but still in body fluids, eg blood, for 24 hours or longer, while it can only live from 20 to 60 seconds outside body fluids (Van Dyk 19); CDC Morbidity and Mortality Weekly Report 12 July 1991 5, 7.
[60] Van Wyk 1988 De Jure 328; Transvaler 21 July 1992; The Star 22 July 1992; Van Dyk 29-30.
[61] Tereskerz et al 1996 New England Journal of Medicine 1150-1153 (as quoted in AIDSScan March 1997 9). In a similar study the risk of HIV infection after percutaneous exposure (i e exposure resultant from absorption through the skin) to HIV-infected blood was concluded to be 0,36%, while no health care workers whose mucous membrane or skin was exposed to HIV-infected blood, seroconverted (AIDSScan March 1994 6).
[62] Doe v University of Maryland Medical System Corporation 50 F 3d 1261 (1995).
[63] One study went as far as to suggest that 20% of infected individuals could remain symptom-free for at least 25 years. Only observation over time will provide meaningful percentages (AIDSScan March/April 1996 6).
[64] Keir AIDS Analysis Africa December 1990/January 1991 9; Van Wyk 1988 De Jure 328; Krim AIDS an Epidemic of Ethical Puzzles 19; Carr AIDS in Australia 7.
[65] Grossman AIDS: Principles, Practices and Politics 167.
[66] Cf the response of the AIDS Legal Network to SALC Working Paper 58.
[67] Dr A Grimwood, Medical Officer of the City of Cape Town stated in his comments on SALC Discussion Paper 73 that the percentage (25-30%) of babies born with HIV as a result of their mothers bing infected increases to 50% after two years in the event of infected mothers breastfeeding.
[68] Grossman AIDS: Principles, Practices and Politics 168; Berer and Ray 72.
[69] Epi Comments September 1995 218.
[70] Epi Comments February 1995 45-46.
[71] UNICEF Children and Women in SA June 1993 48.
[72] Berer and Ray 72. Women are physically more susceptible to infection during heterosexual intercourse than men (Arnott Innes Labour Brief June 1996 32). Towards the end of 1995 more than 73% of reported cases of clinical AIDS in South Africa were the result of heterosexual intercourse and transmission from mother to baby.
[73] "Summary Results of the Eighth National HIV Survey of Women Attending Antenatal Clinics of the Public Health Services in South Africa in 1997" released by the Department of Health on 10 March 1998.
[74] Ibid. For the 1996 infection rate see Epi Comments December 1996/January 1997 6.
[75] Epi Comments December 1996/January 1997 10-11. Similar estimates for 1997, based on the Eighth National HIV Survey, were not yet available when the current interim report was compiled. It was estimated at the end of 1996 that there would be about 90 000 new cases of clinical AIDS in South Africa during 1997 and that 20 000 of those would be children born to mothers with HIV (Commentary on the Seventh National HIV Survey - Oct/Nov 1996 by Mr Peter Doyle of Metropolitan Life - an incubation period of eight to nine years on average was assumed for these estimates.)
[76] Epi Comments December 1996/January 1997 6. Figures including babies born during 1997 were not available at the time of compiling the current interim report.
[77] AIDSScan June 1995 10. See also the comments of Prof Anthon Heyns, Medical Director, SA Blood Transfusion Service, Johannesburg, on the increased HIV infection among black school going children between the ages 16 to 20 in AIDSScan June/July 1996 7.
[78] Epi Comments December 1996/January 1997 10. The figure for 1997 was not available at the time of compiling the current interim report.
[79] Ibid.
[80] Lachman 454.
[81] Ibid 454-455.
[82] The KwaZulu Natal 1997 monthly average for new infections in the age group 15-19 years is, for instance, 277 (Kwitshana [Unpublished 1]). It has also been said that one fifth of all people with AIDS are in their twenties and are likely to have become infected during their adolescence (Ibid).
[83] See eg the comments of the Early Resource Unit on SALC Discussion Paper 73.
[84] Confirmation of sexual abuse was eg found in 14 of 96 HIV-positive children in a paediatric AIDS unit at Duke University USA in a study reported on in 1991 (Lachman 477).
[85] Lachman 477.
[86] Due to under-reporting it is impossible to determine how many children in South Africa are actually victims of sexual crimes. Statistics show that 5 313 cases of rape, sodomy and incest were dealt with by the Child Protection Unit of the South African Police Service for the period January - December 1993, while 7 968 cases of the same nature were dealt with in the period January - July 1996 (Pienaar 1996 In Focus Forum 17-18). According to the official statistics released by the Crime Information Management Centre of the South African Police Service, statistics regarding sexual abuse of children are even higher: 22 133 cases of sodomy, rape and attempted rape, intercourse with girls under the prescribed age and/or female imbeciles, and incest with persons under the age of 17 years were recorded for the period January - December 1996 (information supplied by the Crime Information Management Centre, departmental letter 26/1/1 of 5 February 1998).
[87] For more detail on these comments see par 5.13-5.14.2 below.
[88] Pienaar 1996 In Focus Forum 17-18.
[89] Ibid.
[90] Ibid 30.
[91] Epi Comments October 1995 234. (These are apparently the last available statistics issued by the Department of Health on drug abuse as a mode of HIV transmission.)
[92] See the sources referred to in fn 47 above.
[93] For more detail see par 2.41-2.45 below.
[94] AMFAR AIDS/HIV Treatment Directory June 1996 135-138.
[95] Hawkes and McAdam 1993 Medicine International 70-71.
[96] Lachman 202. Cf AMFAR AIDS/HIV Treatment Directory June 1996 97-134.
[97] Comment on SALC Discussion Paper 72 by the City of Cape Town Health Department.
[98] Ibid; Carr AIDS in Australia 8.
[99] Comment on SALC Discussion Paper 72 by the City of Cape Town Health Department.
[100] Evian 1991 16.
[101] Gibb and Peckham 1993 Medicine International 65-66; WHO AIDS Series 8 4; Newell and Peckham HIV Infection and Children in Need 14; McIntyre (Unpublished) 42.
[102] Berer and Ray Women and HIV/AIDS 72.
[103] This part of the French Prospective Cohort Study, dealing with the relationship between the course of HIV infection in children and the severity of the disease in their mothers at delivery, is discussed in AIDSScan June 1994 7.
[104] Malloy 1996 American University Law Review (Internet accessed 31 October 1997). A number of studies that use short courses of ante-retroviral therapy during pregnancy are being undertaken in the developing world. These appear to show that a combination of AZT and 3TC reduces the risk of transmission of HIV to infants. Figures from the Centers for Disease Control in the US show that the number of infants infected perinatally drops by 43% if their mothers were given a full course ante-retro-viral drugs (Pretoria News 1 December 1997 9). Recent media reports in South Africa (Diamond Fields Advertiser 20 February 1998; The Mail and Guardian 27 February-5 March 1998) confirmed that similar studies undertaken by the Centers for Disease Control and Prevention in Thailand indicated a 51% reduction in mother-to-child transmission of HIV if women were given short courses of AZT late in pregnancy. The Thai study however only provided information about women who did not breast-feed. Breast-feeding carries an additional risk of HIV transmission of about 15%. It has been reported that fruitful discussions on the introduction of the new therapy in South Africa have already been held with government and provincial authorities (Ibid; see also CDC Morbidity and Mortality Weekly Report 6 March 1998 151-154 and the press release "South African Researchers Welcome Breakthrough in Preventing HIV Infection of Babies" by the Perinatal HIV Research Unit, Chris Hani Baragwanath Hospital, 19 February 1998).
[105] American literature indicates that the symptom-free period (depending on the application of aggressive therapy) may last up to five years (Crossley 1993 Columbia LR 1597-1598).
[106] Gibb and Peckham 1993 Medicine International 66; Newell and Peckham HIV Infection and Children in Need 14-15.
[107] Grossman AIDS: Principles, Practices and Politics 169; McIntyre (Unpublished) 42-43.
[108] Guidelines - SA National Council for Child and Family Welfare 16; cf also Grossman AIDS: Principles, Practices and Politics 181.
[109] AIDSScan December 1994 10.
[110] Friedland and McIntyre 1992 SAMJ 90-94.
[111] Bobat et al 1990 SAMJ 524-527.
[112] Lachman 437.
[113] AIDSScan June 1994 13.
[114] Lachman 437.
[115] AIDSScan February/March 1991 3.
[116] Lachman 444.
[117] See the sources referred to in fn 47 above. See also Levine and Bayer AIDS an Epidemic of Ethical Puzzles 21-22; Confronting AIDS 304-307; Moodie 1988 SA Journal of Continuing Medical Education 58-63.
[118] See par 2.45 below. The City of Cape Town Health Department in its comment on SALC Discussion Paper 72 pointed out that viral load testing is extensively used for private patient management and for monitoring of patients in drug treatment trials.
[119] CDC Morbidity and Mortality Weekly Report 14 August 1987 509; Chavey et al 1994 Journal of Family Practice 249 et seq.
[120] The cost of a WB test is approximately R276 to R751; the cost of an ELISA test carried out by a private body varies from R74 to R203 (information supplied by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997).
[121] According to the WHO guidelines the prevalence of HIV in the population to which the person belongs on whom the blood test is performed, is decisive. The scientific premise is that the higher the prevalence of HIV infection, the greater the probability that a person who in the first instance tests positive, is truly infected (cf Fleming and Martin 1993 SAMJ 685-687).
[122] Fleming and Martin 1993 SAMJ 685-687.
[123] Information supplied by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997. See also Gostin 1991 AMJLM 110.
[124] Gostin et al 1986 AMJLM 10; Banta 5.
[125] A very small percentage of infected people never develop antibodies to HIV and will therefore repeatedly show false negative tests (Van Dyk 13).
[126] Australia Report on Privacy and HIV/AIDS 11; cf also the remarks of Van Dyk 12 and Van Wyk 1988 De Jure 327 on the accuracy of the tests. Moodie (1988 SA Journal of Continuing Medical Education 63) alleges that the Western Blot test theoretically provides "the ultimate confirmation" while Volberding (AIDS: Principles, Practices and Politics 102) is of the opinion that if a combination of antibody tests is properly carried out in population groups with a high prevalence of HIV infection, such testing is "highly accurate".
[127] Orthmann Law and Policy Reporter April 1996 55.
[128] Information supplied by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997.
[129] Viral load testing is the direct measurement of the amount of HIV virus in the blood of people with HIV infection. (HIV mostly lives in the lymph system. Only 2% lives in the blood.) It is currently regarded as the best marker for the progression of HIV disease and is becoming a standard of HIV treatment monitoring. Studies have eg determined that patients who have a higher virus load will progress more quickly to AIDS than persons with lower virus loads. Viral load testing is therefore used as an adjunct in treating HIV and is not used to initially diagnose HIV infection (Viral Load Testing - Reports from the Vancouver AIDS Conference [Internet accessed on 10 November 1997]; HIV- Infogram: Viral Load Testing [Internet accessed on 10 November 1997]; The Body: Viral Load Testing [Internet accessed on 10 November 1997]).
[130] Saag et al 1996 National Medicine 625-629.
[131] Colebunders and Ndumbe 1993 The Lancet 601; Chavey et al 1994 Journal of Family Practice 249. But see also Volberding 1996 The Lancet 71-73.
[132] Information supplied by Prof A Heyns of the S A Blood Transfusion Service on 27 October 1997; see also van Dyk 12; Crofts AIDS in Australia 26-27.
[133] Information supplied by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997.
[134] Par 2.41-2.45 above.
[135] Evidence before the Commission by Dr R Crookes of the SA Blood Transfusion Service on 7 February 1994.
[136] Ibid; Newell and Peckham HIV Infection and Children in Need 13; WHO AIDS Series 8 36-37; Gibb and Peckham 1993 Medicine International 65; Lachman 436. Cf however the opinion expressed by Malloy that this period is six months (Malloy 1996 American University Law Review [Internet accessed 31 October 1997]).
[137] Cf par 2.45 above. A sensitive and specific PCR assay to be used in the case of infants has recently been developed by a South African researcher, Ms J Marnewick (MRC Newsweek 19-23 May 1997).
[138] Newell and Peckham HIV Infection and Children in Need 14.
[139] Ibid; McIntyre (Unpublished) 42.
[140] McIntyre (Unpublished) 42.
[141] AIDSScan October 1996 4. In a discussion of a study on the effect of breastfeeding on the vertical transmission of HIV in Soweto this was confirmed (AIDSScan October 1996 13). Doyle Facing up to AIDS 98 accepts a 35% mother-to-child infection rate.
[142] Evidence before the Commission by Dr R Crookes of the SA Blood Transfusion Service on 7 February 1994.
[143] Havlir and Richman 1993 Medicine International 62; Plummer AIDS in Australia 82; Van Wyk 60-61; Van Dyk 15.
[144] Tindall et al AIDS in Australia 218; Van Wyk 60-61; Havlir and Richman 1993 Medicine International 63; Penslar AIDS an Epidemic of Ethical Puzzles 174.
[145] Discoveries made during 1996/97 regarding the use of a combination of anti-retroviral therapies to reduce viral load to undetectable levels in blood and lymphatic tissue, may provide the means of maintaining immunological function and substantially postponing disease progression and death. Application of these treatments may also improve results of prophylaxis for HIV transmission, reducing perinatal transmission and the risk of HIV infection for health care workers (Cohn 1997 BMJ 487-491; BMJ [ SA Ed] August 1997 487). Cf also Groopman The New Republic 12 August 1996; Gyldmark and Tolley The Economic and Social Impact of AIDS in Europe 30-37.
[146] Cf Cohn 1997 BMJ 487-491; BMJ (SA Ed) August 1997 487; Papaevangelou et al The Economic and Social Impact of AIDS in Europe 70.
[147] Cf Cohn 1997 BMJ 487-491; BMJ (SA Ed) August 1997 487; Farnham 1994 Public Health Reports 312.
[148] Mcnary-Keith 1995 Journal of Law and Education 69-80.
[149] Paediatricians may prefer to use killed polio vaccine. BCG should be withheld from children with symptomatic disease. See Gibb and Peckham 1993 Medicine International: Southern African Edition 64.
[150] Lachman 451.
[151] The US Public Health Service, for instance, recommends that children with HIV should receive inactivated polio vaccine, MMR and influenza vaccine. US researchers advised that possibly also BCG could be given in areas of high tuberculosis prevalence (Lachman 451, 453).
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