While seen as a significant milestone, the landmark Gauteng High Court judgment confirming the rights of all pregnant and lactating women and children under six to access free services at South African health facilities, does not obliterate, totally, the looming restrictions in the proposed NHI.
The order comes 11 months after SECTION27 and three affected people launched court proceedings against the Gauteng Department of Health, the National Health Department, and Charlotte Maxeke Johannesburg Academic Hospital for excluding asylum seekers, undocumented people, and people affected by statelessness from receiving free health care, write Mbali Baduza and Kholofelo Mphahlele for Spotlight.
The application sought to confirm the progressive long-standing national legislative position that all pregnant and lactating women and children under six, irrespective of nationality and documentation status, have the right to free health services at all public health institution.
The order granted by Deputy Judge President Roland Sutherland is a vindication of constitutional rights, such as section 27(1) which guarantees everyone the right to healthcare services, including reproductive health care, as well as section 28 (1)(c) that affirms the right of every child to basic healthcare services.
Sibusisiwe Ndlela, an attorney in the Health Rights Programme at SECTION27, called the order “a great victory for reproductive health rights in South Africa”.
The Department of Health has until 15 May to issue a circular to all provinces, and to put up posters and notices in all health establishments by no later than 17 July, clearly stating the legal position. The Gauteng Department of Health was given six months to amend its policy.
The High Court further ordered that the respondents appear before the court on 23 October 2023 to provide a comprehensive report on their compliance with the order.
How we got here
At the height of the pandemic in 2020, SECTION27 and partner organisations started to receive reports that public hospitals in Gauteng had begun to re-classify migrant persons as full-paying patients, except for refugees with valid documentation.
The Gauteng Department of Health said it had issued Policy Implementation Guidelines on Patient Administration and Revenue Management (“the 2020 Policy”). While this allowed free healthcare to refugee mothers and children with valid documents, it excluded asylum seekers, undocumented people, and others affected by statelessness.
The 2020 policy was a surprise to migrant health users, doctors and health activists, as they appeared to have been introduced overnight without warning.
No contingency plans were announced by the hospitals or Department of Health to support migrants who depended on government health services for their well-being and, at the time of the pandemic, for their survival.
In fact, said Hlengiwe Mtshatsha, manager of the Refugee Law Clinic at Lawyers for Human Rights, during the two-year lockdown, the Department of Home Affairs’ Refugee Reception Offices were closed.
“That meant asylum seekers and refugees could not renew their permits. Home Affairs then issued a ministerial directive, which clearly stated that no person should be penalised for the expiry of their permits during this period and that de facto, the permits were extended by the directive,” said Mtshatsha.
But disturbingly, Home Affairs failed to communicate this to hospitals. As a result, some refugees (including pregnant women and children) with expired documents were classified as full-paying patients in Gauteng hospitals, because they did not have valid documents.
Without official communication, hospitals considered the situation beyond their control and continued to apply the 2020 policy.
During the almost three-year tenure of the unlawful “2020 Policy”, the excluded category of people was subject to unimaginable suffering.
The application by SECTION27 and the three affected people was supported by medical organisations like Doctors Without Borders (MSF) and the Southern African HIV Clinicians Society (SAHCS), reports Spotlight, who provided evidence on how the inability to provide healthcare services to patients was a source of great distress for doctors and other medical professionals.
Doctors described their ethical dilemmas as being complicit in human rights violations, despite their own professional and sometimes personal commitments to human rights.
The stress of this dual loyalty was exacerbated by the refusal of senior officials in hospitals and the Department of Health to adequately respond, guide, and support doctors who reported unlawful conduct and discriminatory practises against migrant people in the public healthcare system.
As SECTION27 understands, health professionals who seek to understand the law and the rights it affords migrant persons are often shunned and informed to “just do their jobs” and follow hospital policy.
Trail of discriminatory institutional policies
Civil society has long put pressure on the Health Department to reverse policy directives, which act as obstacles for migrant people to access healthcare services in South Africa. In 2007, the National Department of Health released ART (anti-retroviral treatment) and Revenue Directives, clarifying that asylum seekers and refugees – with or without permits – were exempt from paying for diagnostic services and ART, and like South Africans, would be means-tested based on income to access other health services.
However, in 2008 more than 15 civil society organisations made a joint submission to the South African National Aids Council Plenary saying the directives needed “to be properly communicated to healthcare workers, senior public health officials, particularly the CEOs of clinics and hospitals”, as migrants continued to be denied access to ART and other basic services.
In 2013, the Gauteng Department of Health released the “Non-South African Citizens (Foreign Patients) Guidelines” (“2013 Guidelines), demonstrating a clear intention to discriminate and systematically exclude migrant people from accessing health services.
Effectively, these instructed health facilities to obtain full payment before giving healthcare to undocumented migrants, including those from SADC (Southern African Development Community) countries.
This created confusion for health providers and users alike, as the 2013 Guidelines contradicted the National Department of Health’s Uniform Patient Fee Schedule, annexure H (“National Fee Schedule”), staring that citizens from SADC countries who enter South Africa illegally should be treated the same as South Africans and subjected to a means test based on their income.
Consequently, the contradiction between the two policies led to an inconsistent application in hospitals.
Thifulufheli Sinthumule, executive director of the Consortium for Refugees and Migrants in South Africa (CoRMSA), said: “Without clarity, access to health services depended on the discretion of staff on duty, who at times exercised their discretion to the exclusion of asylum seekers and refugees.”
After the withdrawal of the 2013 Guidelines, the health department, in 2019, issued an instruction to provinces to charge migrant people, including asylum seekers, the full costs of healthcare services. The only exception would be refugees with valid documentation who would be subject to discounted fees depending on income.
According to former Deputy Director-General in the National Department of Health, Dr Anban Pillay, Gauteng was the only province to instruct health facilities to charge migrant patients with the full cost of services before treatment, including before emergency care.
The policy directive was immediately rescinded after civil society, journalists, and the Western Cape Department of Health started asking questions. The policy would have contravened section 27(3) of the Constitution, which provides that no one may be refused emergency care, as well as section 5 of the National Health Act, which states that “A healthcare provider, health worker, or health establishment may not refuse a person medical treatment”.
Tragically, and despite the withdrawal of the instruction seven months previously, in December 2019, two-year-old Sibusiso Ncube, born to Zimbabwean parents, died after being denied emergency treatment at Charlotte Maxeke Academic Hospital when he swallowed rat poison at home. According to court papers, his mother could not immediately produce the child’s birth certificate or pay R5 000.
It is a significant indictment on the Ministry of Health in South Africa that it has, over the years, intentionally and repeatedly issued various circulars and instructions aimed at excluding or making it extremely difficult for migrant patients, in their varying categories, to access healthcare – including the most vulnerable groups like mothers and children.
A reflection of the future?
The 2019 iteration of the NHI Bill currently before Parliament entitles all children (including asylum seekers or undocumented migrants) to an undefined set of “basic healthcare services”.
Regrettably, the Bill makes no reference to free maternal healthcare for everyone living in South Africa. Further, while refugees will be entitled to the same health coverage as South Africans, confusingly, asylum seekers and undocumented persons will only be entitled to pre-hospital emergency medical services and services for notifiable conditions of public health concern (such as TB, Ebola, cholera, etc.).
A clear threat to public health, the Bill removes the right of asylum seekers and undocumented people to receive treatment for HIV and other communicable diseases.
In addition, South Africa currently has no definition for emergency medical treatment and, therefore, the extent of pre-hospital emergency medical services necessary to save lives in an ambulance is anyone’s guess.
However, during oral submissions on the NHI Bill in Parliament in December 2021, head of the Health Rights Programme at SECTION27, Sasha Stevenson, made it clear that the Bill signifies “a significant and unlawful regression in access to healthcare services by asylum seekers and undocumented migrants from SADC and their children and this is something (SECTION27) will challenge legally if the (Bill) goes through”.
The good news is that the recent court order sets a precedent for migrant health rights. For as long as there is no prescribed condition by the minister to limit the category of people eligible for free healthcare services under section 4 of the National Health Act, the rights of mothers and children to free health services extends to undocumented people, asylum seekers, and those affected by statelessness.
Even with the introduction of such a condition, it would be regressive in nature and vulnerable to a constitutional challenge, since it would be withholding services previously available to migrant health users.
Spotlight article – Migrant health rights’ struggles far from over (Creative Commons Licence)
See more from MedicalBrief archives:
‘Landmark’ ruling confirms free healthcare right for all pregnant women, children
Submissions: NHI Bill has serious constitutional and human rights implications
Refugees and asylum-seekers have ‘constitutional right’ to NHI care