A Gauteng Health circular that called for the province’s state hospitals to charge foreign patients for services was hastily withdrawn following the national department’s claims that it was a junior official’s mistake. But now, says a Sunday Times report, that same circular has resurfaced as part of the provincial department’s legal arguments in denying an asylum seeker kidney treatment she needs to stay alive.
In March, it was reported how the circular, a directive from the Gauteng Health Department, said foreign nationals would be forced to pay to use state hospitals, including for emergency treatment. “All non-South African citizens should be classified as full-paying patients, except refugees with valid documents who will be classified according to a means test,” the memo said. “The non-South African citizens … must pay for all health care including emergency treatment, confinement (maternity) and basic health services. The cost of services rendered must be paid upfront or on discharge.”
But Precious Matsotso, director-general of the national department, said the circular had been issued by a junior official and wasn’t approved. “I didn’t issue it. It is unlawful. If it is not issued by me, it can’t be implemented by the provinces. It will be withdrawn …” she said at the time.
However, a recent urgent application at the High Court (Johannesburg) shows that Gauteng Health was still using the circular as part of its evidence that a young woman should not receive the triweekly kidney analysis she needs to survive.
The report says Alem Bazabe Ereselo was forced to approach the High Court for help after doctors at Helen Joseph Hospital told her she was not entitled to the chronic treatment because of her status as a refugee from Ethiopia. Her legal representatives from Lawyers for Human Rights insist that this is unconstitutional and a violation of human rights.
While Ereselo has been granted provisional treatment pending the outcome of the case later this month, the report says the Gauteng Health Department’s written arguments submitted to the court suggest that the national policy – particularly on renal treatment – is arguably anti-foreigner.
Alongside the Gauteng health circular, the department submitted the Standard Operating Procedure (SOP) document for Helen Joseph, which categorically states that: “… Non-South African citizens and permanent residents are therefore excluded from the provision of long-term dialysis.” Because of this, asylum seekers are also to be excluded from kidney transplants, and the policy document suggests the hospital is well within its rights to deny dialysis treatment to this group.
However, the SOP says it takes its cues from the national department’s 2009 guidelines, which merely say the obligation is to treat South Africans to the best possible medical care, with no directives specifically stating that non-South Africans should be denied treatment.
The report says supplementing the Gauteng Health Department’s argument is an affidavit from the head of nephrology at Helen Joseph, Dr Malcolm Davies, who was responsible for the hospital’s decision to stop providing treatment to Ereselo. The affidavit explains that Ereselo was given dialysis to prevent her “imminent death” in January, but this was meant to be a temporary measure to allow her family to move her to another facility, or even send her back to Ethiopia. Despite Ereselo and her family explaining she could not return to Ethiopia for fear of continued persecution, the hospital was forced to cut her treatment, according to Davies, because she is an “illegal immigrant”.
The report says it is a policy that has become central to another legal inquiry launched by Lawyers for Human Rights, who are taking the department to court to change its restrictions on renal treatment for asylum seekers, forming a second application following Ereselo’s. “LHR will argue that the policy, which prevents an asylum seeker from continuing to receive chronic renal treatment, is unconstitutional,” said Robin Lenehan, one of the lawyers representing Ereselo.
Regardless of the policy, Davies also cited a scarcity of resources as another reason treatment could not be continued. “The division of nephrology at Helen Joseph has a chronic shortage of dialysis slot(s) and is unable to take new patients or patients who are not transferable,” he wrote.
The report says questions sent to the national Health Department spokesperson Popo Maja were unanswered at the time of publication. These included whether or not the Gauteng health department had erred in using the circular on foreign patients, whether the national guidelines are xenophobic, as suggested by Lawyers for Human Rights, and the reaction to the alleged scarcity of resources for kidney treatment at Helen Joseph Hospital.The Times report (subscription needed)