OpenForum – a blog by the Health and Human Rights community

By Ellen Shaffer, Joseph Brenner, and Shayna Lewis

Why are some lower-price generics available in the US before they can be sold in Guatemala? Our recent article in Health Affairs analyzes how years of pressure by the pharmaceutical industry and the US government  resulted in intellectual property rules in the Central America Free Trade Agreement (CAFTA-DR) that place desperately needed medicines out of the hands of Guatemalans in violation of the country’s internationally recognized and constitutionally protected right to health.

CAFTA covers the United States and six other countries: the Dominican Republic, Costa Rica, El Salvador, Nicaragua, Honduras, and Guatemala. In 2005, the United States Trade Representative predicted that “[CAFTA] will not affect Guatemala’s ability to take measures necessary to protect public health. . . . Stronger patent and data protection increases the willingness of companies to release innovative drugs in free trade partners’ markets, potentially increasing, rather than decreasing, the availability of medicines.”  However, the Center for Policy Analysis on Trade and Health (CPATH) found that CAFTA in fact increases health risks for patients who need these drugs by increasing the prices of medicines, and CAFTA stifles innovation by undermining Guatemala’s domestic generic drug industry.

CAFTA rules protect the products and processes of brand-name pharmaceutical companies (their intellectual property, or IP) from competition by generic companies — competition that can lower drug prices. These price protections are stronger than existing US law and the World Trade Organization’s (WTO) multilateral Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). The World Health Organization (WHO) and others have expressed concerns that the consequences of these “TRIPS-Plus” rules are particularly serious in lower-income countries, where price is an important factor in access to medicines.

CAFTA also undermines existing mandates to protect public health.  According to the WHO, every country has signed on to at least one treaty that recognizes health as a human right.  Guatemala has signed a number of international conventions advancing public health and explicitly recognizes that health is a human right in its own constitution. However, CAFTA essentially requires Guatemala to continually violate this right, by making it harder for residents to access medications. Read more

Photo © 2008 Fred Abrahams/HRW

The recent humanitarian release of Libyan citizen Abdalbaset al-Megrahi from prison in Greenock, Scotland, because of his poor health, and his subsequent “hero’s welcome” in Libya is strikingly incongruous when compared with the tragic fate of Fathi al-Jahmi, a Libyan prisoner who also suffered from poor health, including coronary artery disease, congestive heart failure, hypertension, and diabetes.

Libyan authorities held Mr. al-Jahmi prisoner in Tripoli on two occasions for a total of six and a half years. His “crime”? The peaceful exercise of his fundamental rights of freedom of expression and association. He advocated for democratic reforms and free elections, as have many other Libyan citizens whose outspoken opinions have led to their imprisonment. Additionally, Mr. al-Jahmi had the audacity to directly criticize the Libyan government and its leader of 40 years, Colonel Mu’ammar al-Quaddafi.

Mr. al-Jahmi’s second arrest took place in March 2004. In February 2005, a medical doctor representing Physicians for Human Rights (PHR) visited him in a special detention facility and reported that he suffered from diabetes, hypertension, and heart disease. PHR “called for al-Jahmi’s unconditional release and access to medical care.”

However, following a secret trial in May 2006 that failed to meet fundamental fair-trial standards, the court ruled that Mr. al-Jahmi was mentally unfit to stand trial. Confinement in a psychiatric hospital, for an entire year, followed this ruling. He was denied both medical care and family visits. In mid-2007, after a diagnosis of congestive heart failure, the Libyan authorities granted Mr. al-Jahmi a transfer to Tripoli Medical Center and later claimed he was a free man.

PHR and Human Rights Watch representatives, including PHR advisor Dr. Scott Allen, visited Mr. al-Jahmi at the Tripoli Medical Center in mid-March 2008 — a repeat visit facilitated by the Quaddafi Foundation, which is headed by Col. Quaddafi’s son, Saif al-Islam. They found that Mr. al-Jahmi’s health had improved with better medical care and that he was not “mentally disturbed.” However, his health was still substantially worse than at the time of his arrest, and he remained very ill, so much so that the PHR doctor recommended immediate invasive testing and suggested possible angioplasty or bypass surgery. Because Mr. al-Jahmi did not trust the Libyan authorities, the PHR doctor said that it could prove necessary to perform such follow-up procedures abroad. Read more

[Editor’s Note: This is the third post in a series of case studies describing the bureaucratic and political barriers to medical access outside of Gaza and the stories of three individual Gazan patients. The first post can be found here, and the second can be found here.]

Below is one PHR-Israel case study representing a current trend in the provision of exit permits to Gazans for medical reasons. Case studies such as this one have been provided by PHR-Israel to raise awareness about border restrictions in Gaza that prevent Gazan patients from receiving critical health care. Full names are withheld for reasons of medical confidentiality and can only be released for purposes of access to medical care.

Case Study 3

(Provided by PHR-Israel)

August: Diplomatic pressure fails to reverse a prohibition on medical access from Gaza
Yousef I.A.L, male, 41, is a father to six children from the Jabalia refugee camp in the Gaza Strip. In 2005, Yousef underwent surgery replacing a mitral valve and also removing a cancerous tumor from his heart. He currently suffers from chronic renal failure and is awaiting a kidney transplant. He also suffers from recurrent venous and arterial thrombosis, including pulmonary embolism and critical ischemia in the legs and hip, from diabetes, high blood pressure, and nerve atrophy which began in childhood. Over the past three months, Yousef has lost over 30kg of his body weight and together with the overall deterioration in his physical condition there is a concern for the recurrence of cancer in his body. Read more

[Editor’s Note: This is the second post in a series of case studies describing the bureaucratic and political barriers to medical access outside of Gaza and the stories of three individual Gazan patients. The first post can be found here. Look for the next case study on Monday, November 2.]

Below is one PHR-Israel case study representing a current trend in the provision of exit permits to Gazans for medical reasons. Case studies such as this one have been provided by PHR-Israel to raise awareness about border restrictions in Gaza that prevent Gazan patients from receiving critical health care. Full names are withheld for reasons of medical confidentiality and can only be released for purposes of access to medical care.

Case Study 2

(Provided by PHR-Israel)

July: Diplomatic and public pressure reverse “security” considerations regarding medical access from Gaza.

Ahmad A.B., male, 28, resident of Gaza, was diagnosed in August 2008 as suffering from a Hodgkin’s lymphoma type cancer. He underwent seven series of chemotherapy in Gaza but did not respond to it. A CT scan performed in May 2009 showed a tumor in the chest and enlarged lymph nodes. On May 7 he was urgently referred for care to the Augusta Victoria hospital in East Jerusalem, which has advanced care facilities for cancer patients, for lifesaving care. Ahmad was given an appointment for June 23, but his request for an exit permit from Gaza — submitted via the Palestinian coordinating mechanism to the Israeli authorities — was rejected by the Israeli secret police (ISA/GSS/Shin Bet) on the grounds of a “security prohibition.” The patient then applied to PHR-Israel for assistance, who transferred his medical documents to their Israeli expert volunteer Prof. Dina Ben Yehuda, head of the Hematology Department at Hadassah hospital in Jerusalem. Prof. Ben Yehuda provided a medical opinion according to which, since the patient was not responsive to ABVD therapy received in Gaza, he must urgently arrive at the Jerusalem hospital to receive combined care including aggressive chemotherapy, radiotherapy and other care.

On June 30 PHR-Israel applied in Ahmad’s name to the Israeli military authorities at Erez Crossing asking that he be urgently transferred to East Jerusalem for medical care. On July 2 the Israeli authorities answered that the request had been rejected by the secret police. PHR-Israel then referred the case to members of Knesset, to PHR-Israel’s members and to the embassies of the EU presidency (Sweden) and of Norway in Tel Aviv, asking that pressure be exerted on the Israeli military to enable the exit of this patient. Several days later, following multiple queries to the military authorities and to the Israeli Foreign Ministry, the military authorities reversed the patient’s “security prohibition” and the patient was allowed to access the hospital.

[Editor’s Note: This is the first of three posts covering a series of case studies describing the bureaucratic and political barriers to medical access outside of Gaza, focusing on the stories of three individual Gazan patients. Look for the next case study on Monday, October 26.]

The Israeli-imposed border restrictions in Gaza continue to choke off needed medical assistance for Gazan patients. Humanitarian and medical aid can barely squeeze into the blighted region, and sick Gazans with referrals for medical treatment outside of Gaza may not be granted permission to exit.

Additionally, the Gaza War earlier this year triggered major setbacks in health sector operations, according to data published by the World Health Organization in July 2009. Bureaucratic complications and political disputes led to delays in processing applications, culminating with the closure the Referral Abroad Department from March 22 to April 27. The report indicates that in the six months following the war, only half of the applications to exit Gaza via Erez Crossing for medical reasons were approved. The only other way out — the Rafah Crossing leading into Egypt — is open infrequently and only for short periods of time.

Physicians for Human Rights-Israel, a Jaffa-based Israeli organization, has been documenting these permit constraints in order to advocate for patients in tremendous need of care outside of Gaza. According to PHR-Israel, more than 100 Gazan patients apply to PHR-Israel for assistance in medical access from Gaza every month.

Below is one PHR-Israel case study representing a current trend in the provision of permits. Case studies such as this one have been provided by PHR-Israel to raise awareness about border restrictions in Gaza that prevent Gazan patients from receiving critical health care. Full names are withheld for reasons of medical confidentiality and can only be released for purposes of access to medical care.

Case Study 1

(Provided by PHR-Israel)

May and June: Bureaucratic hurdles decreased medical access at Erez Crossing. These months were characterized by severe delays in the handling of Palestinian patients’ requests for permission to exit Gaza for medical care.

Issam Z, male, 44, a resident of Gaza, suffered from severe ischemic heart disease. He was referred for open heart surgery – unavailable in Gaza – in Al Takhasussi hospital in Nablus, West Bank. However, although he had all necessary documents by February 2009 (referral letters from both hospitals and a financial undertaking from the PA to cover the costs of the procedure), he did not succeed in coordinating his exit from Gaza.  Since the Palestinian coordinating mechanism for medical permits was not functioning throughout March and April, his request was not forwarded to the Israeli side, while at the same time, the Israelis were refusing to process applications direct from the patients.

In late April Issam applied to PHR-Israel for assistance, who appealed to the Israeli coordinating authority at Erez Crossing, on April 27, 2009, asking for a speedy processing of the patient’s request to exit Gaza, in the light of his condition and the lack of a Palestinian go-between. On May 5 the Israeli authorities informed PHR-Israel that the Palestinian coordinating mechanism had returned to functioning and therefore they were stopping their handling of his application. They demanded that Issam re-apply via the Palestinian side. On May 14 the Israeli army informed PHR-Israel that the application for exit from Gaza had been approved, only to reverse this decision without explanation several days later. On June 3, after several vain attempts by the patient to re-apply for exit, PHR-Israel demanded of the Israeli army that they expedite the process of dozens of cases that had been delayed in this way since May, including that of Issam. On June 7 the patient’s family informed PHR-Israel that Issam had died of his illness at his home in Gaza.