Thursday, 7 July, 2022
HomeMedico-Legal AnalysisThe law and medical xenophobia in South Africa

The law and medical xenophobia in South Africa

South Africa’s Constitution says the most basic forms of healthcare should be accessible to all who live in the country. However, this is not the experience of many, writes Kholofelo Mphahlele for Spotlight.

She writes:

The COVID-19 pandemic has put an additional strain on this country’s healthcare systems, which have long been overburdened and under-resourced, and exposed the vulnerabilities of high-risk population groups in accessing critical healthcare services.

Some migrants and refugees are denied access to healthcare simply because they are foreign. There have been several instances of them being denied treatment solely based on their nationality – coined “medical xenophobia”. This refers to the attitudes and practices of medical practitioners and healthcare workers towards a certain group, specifically refugees and migrants, and their medical mistreatment or maltreatment when seeking healthcare.

Constant fear of medical xenophobia has deterred many of them from seeking medical treatment unless it is life-threatening.

Some have turned to our legal advice office at SECTION27 for assistance. However, not all instances of poor treatment are medical xenophobia.

For it to be xenophobic, medical treatment must be wrongfully denied on the grounds of someone’s nationality or legal stay. There are other grounds that medical care might be wrongly denied. SA’s healthcare system is in an advanced state of disrepair, and South Africans also face discrimination in accessing medical care.

Before 2020, asylum-seekers from other countries could get vital medication from the closest public facility at no charge. This has changed.

The Gauteng Department of Health Circular 27 of 2020 stating that all non-South African citizens (except refugees and asylum seekers) were classified as full-paying patients was later withdrawn, but many health officials still refer to it when denying foreign nationals healthcare.

These patients are also denied their patient files or medication at the pharmacy if they cannot pay a certain fee.

What the law says

Regarding specialised services like kidney dialysis and organ transplants, the healthcare system must apply a principle called progressive realisation, based on the idea that the state must provide as much as it can, within existing limitations.

In one case heard by the Constitutional Court, the court held that the right not to be refused emergency medical treatment meant a person suffering a sudden catastrophe needing immediate medical attention should not be denied an ambulance or other emergency services and should not be turned away from a hospital for treatment.

The applicant in this case suffered from chronic renal failure and required dialysis treatment two to three times weekly to stay alive. The court decided this was not an emergency needing immediate remedial treatment, and while the state must always provide everyone with emergency medical treatment, this does not include “chronic illnesses for the purpose of prolonging life”.

So, patients are placed in a system that queues them depending on their medical needs. In this system, refugees, asylum seekers, and permanent residents must be treated the same as South African citizens. When refugees are not provided with specialist services due to their nationality, this is unconstitutional.

The Constitution entitles migrants and asylum seekers to the same free basic health services as citizens, including maternity care. But many are mistreated by hospital and clinic staff, experiencing verbal abuse, neglect, and assault. Some have been forced to pay for medical services even in emergencies.

Women bear the brunt

Migrant pregnant women often bear the brunt. In some cases, hospital receptions or nurses refuse to admit them because they have foreign identity documents, for example, an asylum seeker permit, passport, or tourist/work visa. These women often wait for hours without being attended to and are frequently turned away without receiving medical attention.

Through cases reported at SECTION27’s Advice Office, we are aware that migrant women accessing maternal care routinely face discrimination and abuse within the public healthcare system. We hear stories of children dying or left disabled because of ill-treatment or neglect by hospital staff.

Some women who are fearful of being charged money and mistreated choose not to book their place at a hospital for delivery and often wait until the last minute to seek care because this means they must be treated as an emergency. Unfortunately, this also means that fear of abuse and being charged is forcing them to risk their own and their baby’s health.

Confusion over COVID-19 vaccinations

Foreign nationals in SA who have some form of identification are eligible for a COVID vaccination but there is much confusion about their eligibility, also among healthcare workers. Some foreigners say they won’t get vaccinated for fear of deportation.

It is imperative the government provides communication targeting healthcare workers so they also know that non-citizens are eligible for the vaccine and should receive it.

In South Africa, only 3% of the population is foreign-born, and the number of migrants and refugees using the country’s healthcare system is probably in line with this percentage.

Furthermore, research has found that many migrants in the SADC region are not moving in search of healthcare, but are typically healthy, as they need to be in good health to travel.

The laws about foreign nationals’ access to healthcare are not consistent and create confusion. Hospitals have no clear guidance on who can be treated. This is not helped by the Health Department publishing conflicting circulars that confuse staff about migrants’/refugees’ rights to healthcare.

More must be done

Aside from the work of organisations like SECTION27, TAC, and Sonke Gender Justice, more must to be done by embassies and other NGOs to ensure foreign nationals know their rights regarding healthcare services.

There is poor oversight or accountability for abusive staff and system failures: public health facilities commonly do not respond to complaints anyway.

High-quality and respectful healthcare is crucial to prevent maternal death and mistreatment of patients, regardless of nationality. The Constitution provides for everyone in South Africa, regardless of nationality. It is time that the vision and rights enshrined become a reality, so that all who live in here, foreign or not, has access to an inclusive health care system without bias.

Mphahlele is a paralegal at SECTION27’s Advice Office. Spotlight is published by SECTION27 and the Treatment Action Campaign.


Spotlight article – Opinion: What the law says about medical xenophobia in South Africa (Republished under Creative Commons Licence)


See more from MedicalBrief archives:


Medical xenophobia and discrimination widespread in Gauteng health care


The complex story of ‘medical xenophobia’ in SA


Medical sector in SA also touched by xenophobia



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