Panel members: Mr. John Rock (APN+) (Session Chair), Mr. Chalermsak Kittitrakul (AIDS Access Foundation, Thailand), Mr. Dean Lewis (Asian Network of People who use Drugs, ANPUD), and Mr. Dong Duc Thanh (USAID Pathways for Participation Project Vietnam).
Mr. John Rock (APN+)
The law affects people living with HIV at multiple levels. At the international level, patent laws and free trade agreements (FTAs) contain provisions that threaten to restrict access to affordable medicines. Current issues include:
(i) the EU-India FTA, which threatens the supply of generic antiretroviral drugs (ARVs) from India to the world;
(ii) a constitutional challenge to India’s patent law by the pharmaceutical company Novartis, which could threaten the viability of the manufacturers of generic ARVs based in India;
2 (iii) negotiation of the Trans Pacific Partnership, which is a trade
agreement that will include Vietnam, Malaysia, Singapore, Brunei, Australia and New Zealand.
Activists are encouraging governments to make greater use of flexibilities allowed under the Agreement on Trade Related Aspects of International Property Rights (TRIPS Agreement). Exercise of TRIPS flexibilities such as compulsory licensing can ensure that patients can access affordable generic versions of essential medicines such as ARVs.
Other issues that are priority concerns include the application of the criminal law to people living with HIV (PLHIV) and communities affected by HIV, and rights to education, housing, work, and access to health services. APN+ has been involved in new research on the sexual and reproductive health rights of women living with HIV, which will soon be published. A fundamental concern is that people living with HIV need to be empowered to know their rights so that they can take legal action to realize their rights.
Mr. Chalermsak Kittitrakul (AIDS Access Foundation)
The AIDS Access Foundation has been promoting treatment rights since the 1990s in Thailand.
A landmark case involved challenges to the patent on the ARV didanosine (ddI). A significant step was when the court confirmed that organizations representing people living with HIV could challenge the legality of drug company patents on behalf of their community. In 2004, the pharmaceutical company reached a settlement with consumer advocates relating to this drug. Other manufacturers were allowed to produce cheaper generic versions of the drug.
The AIDS Access Foundation successfully advocated to government to exercise powers to issue compulsory licenses under the Patent Act. This allowed the Thai government to import and produce generic ARVs. These victories enabled the government’s national ARV treatment programme to scale-up using generic medicines.
A major political obstacle to these efforts has been the government’s fear of retaliation from trade partners. It was perceived that the Thai government was concerned that issuing compulsory licenses for ARVs would damage trade relations with the United States of America (USA) and the European Union (EU).
However, after pressure from non-government organizations (NGOs), the Thai government issued compulsory licenses for ARVs (lopinavir and ritonavir) and a drug for treating heart disease. This generated an angry response from the USA and EU, who said that it was inappropriate to use compulsory licensing except in the case of emergencies.
The response of the drug company that sold lopinavir and ritonavir, Abbot Pharmaceuticals, was to withdraw applications for registration of seven drugs in Thailand. It seemed that the message that the drug company wanted to send was that it would refuse to register its new drugs in any country that issues a compulsory license on its patents.
Thailand has issued a number of compulsory licenses for ARVs during the last decade. The Thai government has been willing to utilize compulsory licenses despite pressure and threats of retaliation from trade partners. Compulsory licensing reduced the prices of some ARVs. Issuing a compulsory license carries political risks, but these can be managed.
3 There are ongoing concerns about the impact of FTAs on access to medicines in Thailand. If a country signs an FTA that requires strong patent protections for pharmaceuticals, the government may have to change its patent law accordingly, with the result that access to affordable generic versions of drugs is reduced.
Mr. Dean Lewis (ANPUD)
People who use drugs experience disempowerment and alienation from society.
The stigma associated with drug use and its criminality means that people who use drugs feel that they have absolutely no rights.
Migrant workers who use drugs face legal obstacles. For example, foreigners who are working in Thailand may be tested for drug use at any time. A positive test result can lead to immediate deportation. Similarly, foreigners working in Malaysia may be tested for HIV and deported if the test result is positive. Migrant workers often have no legal recourse in these situations.
In 1986, a draconian drug law was introduced in India (Narcotic Drugs and Psychotropic Substances Act 1985). This law required that accused persons must prove their innocence, which reversed the normal onus of proof in criminal cases.
The prosecution did not have to prove that a person was guilty. The offense was non-bailable and carried a minimum sentence of 10 years for possession of over 0.25 of a gram of heroin. Activists worked with lawyers to successfully challenge the constitutionality of these provisions. The minimum amounts for possession was increased, and sentencing is now dependent on the commercial value of drugs seized.
It can be strategic to focus efforts on educating judges. Progress can occur without requiring a change in the written law. For example, although punitive drug laws remain in place in Malaysia, judges have become more willing to provide lenient sentences to people convicted of drug use offences as a result of improved awareness about drug dependency as a health issue.
Collaborations between people who use drugs and the Lawyers Collective in India have resulted in training activities and free legal representation in some cases (pro bono work). Lawyers have been able to intervene to secure the release of people held in detention. Just having the phone number of a lawyer can be helpful if seeking bail.
There is generally no access to legal services for prisoners while they are held in remand awaiting trial. People who are in police custody often do not have access to any HIV medicines or substitution therapies (methadone or buprenorphine).
Legal services are needed at the pre-trial stage to assist in securing access to medicines. After sentencing, people are sent to prison where there is usually some access to basic health care. Before sentencing, there is nothing.
ANPUD’s priority is to advocate for laws that support voluntary, evidence-based drug treatment programmes, needle syringe programmes and substitution therapy programmes. At this stage, decriminalization of drug use is not the main focus of our advocacy in Asia. Our focus is the decriminalization of services.
Mr. Dong Duc Thanh (Pathways)
People living with HIV are isolated; face stigma and many problems in their everyday lives, particularly those who are current or former drug users. Most people do not know where to get help. For many years there were no protective laws in Vietnam. Some legal protections now exist, but sources of practical assistance and legal support are limited.
4 As people living with HIV we started our work to support the community of people living with HIV in Vietnam by working at the provincial level. We used an email group to keep in contact with other people living with HIV in five provinces. We have implemented several projects including addressing the supply of medicines and consultations with officials.
Possession of drugs is illegal in Vietnam, so people who use drugs are scared of being identified and arrested. We can educate people about the law, but in practice it is still very difficult for people whose behavior is criminalized to come forward and access legal help. Sex workers also face legal difficulties and there is no legal support for men who have sex with men.
Vietnamese communities are interested to learn from the experience of other countries such as Thailand on the use of the law to improve access to treatments.
A particular challenge in Vietnam is treatment for patients who are co-infected with HIV and hepatitis C virus. There are very limited treatment options for people living with hepatitis C virus, because drugs are expensive.
Points raised in questions and discussion: experiences of communities What action is being taken to dismantle compulsory detention centers for drug users and sex workers?
Mr. Dean Lewis (ANPUD)
Compulsory detention centers are found in many countries in Asia. Although they are meant to offer rehabilitation, most of these centers do not offer evidence-based treatment for drug dependence. In some cases, people are arrested in the street and detained without any due legal process. Malaysia recently took the courageous step of switching to voluntary treatment centers, which sets a positive example for other countries.
Law enforcement practices are often highly punitive. For example, social order campaigns can result in the detention of a range of people considered undesirable by authorities, including street people, people who use drugs, men who have sex with men, people who sell sex and their children. A person who commits a drug offence for the first time may be treated very harshly. For example, a teenage girl who goes to a disco and uses amphetamines for the first time can be detained and placed in a detention centre populated by much older repeat offenders. Often there is no judicial oversight of police sweeps and detention practices. The health of detainees is poor, due to high rates of sexually transmitted infections (STIs), HIV and tuberculosis (including multidrug-resistant tuberculosis).
Some people enter detention centers voluntarily for the purpose of rehabilitation.
However, many people then discover that they are unable to leave, so in reality it is a form of compulsory detention and punishment. Minimum standards have been developed to improve conditions in these centers. However, it can be difficult to enforce these standards in privately funded treatment centers.
How did you build the capacity of community members in addressing complex laws relating to patents and intellectual property?
Mr. Chalermsak Kittitrakul (AIDS Access Foundation)
We started with treatment education on issues familiar to community members, such as the life-saving nature of HIV medicines, the occurrence of side effects and the need to take drugs regularly. We then discussed more unfamiliar issues, such as the origin of drugs, the drug registration process, and the relevance of patents. It was a step-by-step educational process, so that people could
5 understand how drugs are marketed and the supply chain from factories to consumers.
The treatment access movement in Thailand was formed through collaboration between people living with HIV and a group of academics. Both groups were interested in understanding the obstacles to treatment access and the reasons for high drug prices. Training materials were developed that explained the link between the term of a patent and access to affordable medicines.
Advocates need to understand the Thai patent law and the operation of international agreements, including the Anti-Counterfeiting Trade Agreement (ACTA), and free trade agreements with the USA and the EU that impose high levels of protection to intellectual property rights. We have links with activists in India and Europe. Currently we are emphasizing the need to oppose provisions of the proposed India-EU FTA, which will restrict access to medicines if agreed in its current form. Globally, over 80 per cent of generic medicines come from India. If the EU-India FTA is signed, Indian factories that manufacture generic drugs may be forced to close, which will be harmful for people with a range of chronic diseases, not just HIV.
Successful outcomes have resulted from close collaboration between community activists, academics and supportive officials within the Ministry of Health. There was sufficient political will to test the flexibilities that the law permits. However, it is uncertain whether Thailand will issue more compulsory licenses in the future.
The government continues to be concerned that exercising flexibilities allowed by the TRIPS agreement will result in retaliation from trade partners, particularly the USA and EU.
Mr. John Rock (APN+)
APN+ and the International Treatment Preparedness Coalition (ITPC) have been working on a program of treatment education. People living with HIV have worked productively in partnerships with lawyers in Thailand, India, Brazil and South Africa. ITPC has developed a toolkit to advise people living with HIV on issues such as how to find out about free trade agreements and patents and how to form alliances with lawyers.
In the Pacific, the Fijian Network of People living with HIV (FJN+) has issued a press release on FTAs and access to drugs. It is encouraging to see the rights-based provisions of the HIV Decree in Fiji, which other countries may look to as a model.