Lawyers to test constitutionality of limiting right to treatment

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Lawyers are to appeal a Gauteng High Court (Johannesburg) judgment upholding a decision by Helen Joseph Hospital to discontinue life-saving dialysis treatment for an asylum seeker, raising critical questions on the constitutionality of discontinuing treatment on the grounds of legal status, rather than on medical grounds, reports Groundup.

Soobramoney was a South African citizen who tried to interdict a state hospital from discontinuing his dialysis treatment. The court concluded that given the state’s limited resources, decisions of this nature must be holistic, focusing on the larger needs of society rather than those of a particular person. Accordingly, Soobramoney’s claim was dismissed. He died soon afterwards.

Ereselo’s lawyers intend to argue against the High Court’s reliance on the Soobramoney judgment. On various public platforms, they have argued that the matter at hand is distinguishable from Soobramoney on a number of grounds, notes GroundUp. Soobramoney was ineligible for a kidney transplant on medical grounds. He suffered from ischaemic heart disease and cerebrovascular disease, both transplant disqualifiers, because they significantly reduce the probability of success. This is why he was denied the limited number of places available for dialysis.

In Ereselo’s case, her ineligibility was based entirely on her legal status. The hospital letter giving the reasons for her ineligibility stated: “You are not a South African citizen and you do not possess verified documents pertaining to refugee status or permanent citizenship awarded.” Ereselo’s lawyers also argue that the state has a duty to progressively realise the right to healthcare and it is unacceptable that little progress has been made in this regard since the Soobramoney judgment 22 years ago. The appeal will raise topical questions for South African jurisprudence on the rights of asylum seekers.

The court will likely be asked to determine the constitutionality of discontinuing treatment on the grounds of one’s legal status, rather than on medical grounds. Also, the court may be asked to determine what constitutes emergency healthcare. Section 27(3) of the Constitution guarantees everyone the right to emergency healthcare. In Soobramoney, the court concluded that in the circumstances, dialysis does not constitute emergency healthcare.

Full GroundUp report

Ereselo judgment

Soobramoney judgment

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