G Matthews

Student Number: 36962325

Subject: IRM1501/2020
Assignment 2
Unique Number: 742665

Constitutional Right to have access to Health Care Services:

The right to access to health care services is one of the fundamental rights that is categorized as a
Second - generation right that is sometimes called “red rights”. They are called “red rights” because
they became important during the socialist revolutions. They related to socio – economic issues, that
is, issues that concern society and the economy. These rights allow people to demand that their basic
socio – economic needs be examined and dealt with by the government. To define fundamental rights
let’s look at it closely like this: every person is born with human dignity, and it is this human dignity
that gives that person a claim to human rights. You do not have to work for these rights or qualify to
be given them – they are your natural rights; in other words, they are fundamental to each human
being. Every person has these fundamental rights and the state can never take them away.

• Take note: The Bill of Rights is the cornerstone of democracy in South Africa. It enshrines the
rights of all the people in our country and affirms the democratic values of human dignity,
equality and freedom.
• The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

It is nice to sometimes read all this regulations in the Constitution of South Africa and many other
policies and procedures in government and public services, but we still find a lot of people not properly
being serve with dignity nor do their fundamental rights being applied by the resources that will enable
them to have access to it. Many times, you hear, read, and observe access to health care services being
denied to a lot of South Africans, even United States of America United Kingdom. Guided by the
Constitution of South Africa it has drafted the National Health Act 61 0f 2003 to give guidelines on how
health care systems need to operate to provide a framework for a structured uniform health system
within the Republic, taking into account the obligations imposed by the Constitution and other laws on
the national, provincial and local governments with regard to health services; and to provide for matters
connected therewith.1 South Africa’s apartheid past still shapes health, service, and resource inequities.
Racial, socio-economic, and rural-urban differentials in health outcomes, and between the public and
private health sectors remain challenging. In 2005, spending per private medical scheme member was
nine-fold higher than public sector expenditure, and one specialist doctor served fewer than 500 people
in the private sector but around 11 000 in the public sector.2

1
National Health Act 61 of 2003
2
Journal: Inequities in access to health care in South Africa; Harris Chersich
If the preamble in the National Health Act recognizes
• the socio-economic injustices, imbalances and inequities of health services of the past;
• the need to heal the divisions of the past and to establish a society based on democratic values,
social justice and fundamental human rights;
• the need to improve the quality of life of all citizens and to free the potential of each person;3
why are so many South African citizens experience still the abovementioned issues. Prominently it is
reflected it research studies conducted that even foreigners residing and working in South Africa is
objected to ill – treatment when it comes to access to health care services in various cities in South
Africa. Xenophobia has become deeply institutionalized within post-apartheid society. There is
abundant evidence that state officials (especially the police, home affairs officials, nurses and hospital
personnel refugee determination officers and customs agents) do not leave their attitudes at home
when they come to work. Not all employees of the state are in a direct position to exploit vulnerable
migrants, asylum-seekers and refugees for personal gain. Indeed, those in the so-called “helping
professions” (teachers, social workers and health care professionals) do not play an active role in South
Africa’s enforcement and immigration control machinery. They do, however, come into contact with
migrants and refugees in the course of their jobs. In the absence of official directives to the contrary --
and sometimes despite such directives -- they do have the power to withhold services and they can also
influence the way in which those services are delivered. This report asks how and to what extent,
xenophobia manifests itself in the public health system. A comprehensive answer to this question would
require research into the attitudes and behaviour of health workers themselves. This report presents
and discusses the question from the perspective and experiences of the foreign patients who try to
access the system. The study confirms that the phenomenon of “medical xenophobia” is very real in the
contemporary South African public health system.4 They have the power to withhold services and they
can certainly influence the way in which those services are delivered. This report asks whether and how
xenophobia manifests itself within the public institutions that offer health services to citizens and non-
citizens.

Here we see how in a compromising position non- citizens and citizens of South Africa are place by
health care services personnel and in most cases, we see patients die in the cause of these actions.
Many civil cases have been instituted against various hospitals in the past as well as in the present day,
here reflecting on one, we see how access to health care services was denied deliberately.
[1] The appellant, THIAGRAJ SOOBRAMONEY a 41-year-old unemployed man, is a diabetic who suffers
from ischaemic heart disease and cerebro-vascular disease which caused him to have a stroke during
1996. In 1996 his kidneys also failed. Sadly, his condition is irreversible, and he is now in the final stages
of chronic renal failure. His life could be prolonged by means of regular renal dialysis. He has sought
such treatment from the renal unit of the Addington state hospital in Durban. The hospital can,
however, only provide dialysis treatment to a limited number of patients. The renal unit has 20 dialysis
machines available to it, and some of these machines are in poor condition. Each treatment takes four
hours and a further two hours have to be allowed for the cleaning of a machine, before it can be used
again for other treatment.5 Because of the limited facilities that are available for kidney dialysis the
hospital has been unable to provide the appellant with the treatment he has

3
Preamble statement: National Health Act 61
4
Medical Xenophobia: Zimbabwean access to health services in South Africa; J. Crush and G. TawodZera
5
[1] SOOBRAMONEY (APPLICANT) v MINISTER OF HEALTH, KWAZULU – NATAL 1998 (1) SA 765 CC
requested.

[2] The reasons given by the hospital for this are set out in the respondents answering affidavit deposed
to by Doctor Saraladevi Naicker, a specialist physician and nephrologist in the field of renal medicine
who has worked at Addington Hospital for 18 years and who is currently the President of the South
African Renal Society. In her affidavit Dr Naicker says that Addington Hospital does not have enough
resources to provide dialysis treatment for all patients suffering from chronic renal failure. Additional
dialysis machines and more trained nursing staff are required to enable it to do this, but the
hospital budget does not make provision for such expenditure. The hospital would like to have its
budget increased but it has been told by the provincial health department that funds are not available
for this purpose.

[4] The guidelines provide that an applicant is not eligible for a transplant unless he or she is “[f]ree of
significant vascular or cardiac disease.” The medical criteria set out in the guidelines also provide that an
applicant must be “Free of significant disease elsewhere e.g. ischaemic heart disease, cerebro-vascular
disease, peripheral vascular disease, chronic liver disease, chronic lung disease.” The appellant suffers
from ischaemic heart disease and cerebro-vascular disease and he is therefore not eligible for a kidney
transplant.

[5] The appellant has made arrangements to receive dialysis treatment from private hospitals and
doctors, but his finances have been depleted and he avers that he is no longer able to afford such
treatment. In July 1997 he made an urgent application to the Durban and Coast Local Division of the
High Court for an order directing the Addington Hospital to provide him with ongoing dialysis treatment
and interdicting the Respondent from refusing him admission to the renal unit of the hospital. The
appellant claimed that in terms of the 1996 Constitution the Addington Hospital is obliged to make
dialysis treatment available to him. The respondent opposed the application. The matter came before
Combrinck J who dismissed the application6.

The appellant appealed to the Constitutional Court.

Held (per Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Mokgoro J, O'Regan J,
and Sachs J concurring), that the obligations imposed on the State by ss 26 and 27 of the Constitution
dealing with the right of access to housing, health care, food, water and social security were dependent
upon the resources available for such purposes, and the corresponding rights themselves were limited
by reason of the lack of resources.

Given this lack of resources and the significant demands made on them by high levels of
unemployment, inadequate social security and a widespread lack of access to clean water or to
adequate health services, an unqualified obligation to meet these needs would not at present be
capable of being fulfilled: it was within this context which s 27(3) of the Constitution had to be
construed.

6
Thiagraj Soobramoney v Minister of Health: Province of KwaZulu-Natal D&CLD 5846/97, 21 August 1997,
unreported.
Held, further, that the words `emergency medical treatment' in s 27(3) (`no one may be A refused
emergency medical treatment') might possibly be open to a broad construction which would include
ongoing treatment of chronic illnesses for the purpose of prolonging life. But this was not their ordinary
meaning and, if this had been the purpose which s 27(3) was intended to serve, one would have
expected that to have been expressed in positive and specific terms.7

Held, further, as to the argument that s 27(3) should be construed consistently with the right to life
entrenched in s 11 of the Constitution and that everyone requiring life-saving treatment who was
unable to pay for such treatment herself or himself was entitled to have the treatment provided at a
State hospital without charge, that such a construction of s 27(3) would make it substantially more
difficult for the State to fulfil its primary obligations under s 27(1) and (2) to provide health care services
to `everyone' within its available resources. It would also have the consequence of prioritising the
treatment of terminal illnesses over other forms of medical care and would reduce the resources
available to the State for purposes such as preventative health care and medical treatment for persons
suffering from illnesses or bodily infirmities which are not life threatening. Much clearer language than
that used in s 27(3) would be required to justify such a conclusion.

Held, further, that the purpose of s 27(3) seemed to be to ensure that treatment was given in an
emergency and was not frustrated by reason of bureaucratic requirements or other formalities. A
person who suffered a sudden catastrophe which called for immediate medical attention should not be
refused ambulance or other emergency services which were available and should not be turned away
from a hospital which was able to provide the necessary treatment. What the subsection required was
that remedial treatment that was necessary and available be given immediately to avert that harm.8

Held, further, that, given that the appellant suffered from chronic renal failure and that to be kept alive
by dialysis he would require such treatment two to three times a week, his condition was not an
emergency calling for immediate remedial treatment. It was an ongoing state of affairs resulting from an
incurable deterioration of the applicant's renal function. Section 27(3) therefore did not apply to this
situation.9

Held, further, that the appellant's demand to receive dialysis treatment at a State hospital had to be
determined in accordance with the provisions of s 27(1) and (2) (entitling everyone to have access to
health care services provided by the State `within its available resources') and not s 27(3).

Held, further, that in a context of budget constraints and cutbacks in hospital services in KwaZulu-Natal
there were many more patients suffering from chronic renal failure than there were dialysis machines to
treat such patients. Guidelines were therefore established to assist medical personnel to make the
agonising choices which had to be made in deciding who should receive treatment and who not. These
guidelines were applied in the present case. By using the available dialysis machines in accordance with
the guidelines more patients were benefited than would be the case if they were used to keep alive
persons with chronic renal failure. The outcome of the treatment was also likely to be more beneficial

7
Soobramoney case para [3]
8
Soobramoney case para [5]
9
S 27(3) of the Constitution states that “No one may be refused emergency medical treatment.”
because it was directed to curing patients, and not simply to maintaining them in a chronically ill
condition.

Held, further, that the appellant's case had to be seen in the context of the needs which the health
services had to meet, for if treatment had to be provided to the appellant it would also have to be
provided to all other persons similarly placed. If all the persons in South Africa who suffer from chronic
renal failure were to be provided with dialysis treatment the cost of doing so would make substantial
inroads into the health budget.

Held, further, that the provincial administration which was responsible for health services in KwaZulu-
Natal had to make decisions about the funding that should be made available for health care and how
such funds should be spent. These choices involved difficult decisions to be taken at the political level in
fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court
would be slow to interfere with rational decisions taken in good faith by the political organs and medical
authorities whose responsibility it was to deal with such matters.

Held, further, that the State had a constitutional duty to comply with the obligations imposed on it by s
27 of the Constitution. It was not shown in the present case, however, that the State's failure to provide
renal dialysis facilities for all persons suffering from chronic renal failure constituted a breach of those
obligations.

Appeal dismissed.10
Here, we find it that the applicant’s appeal was also dismissed, issues laid before court was not in
accordance with that applied before it. The bench concurs in unisons even as much as they alluded to
the fact that Private Care Hospital can not be held to account being that it is not part of the case before
the court. This make me apply my mind to what Lily B. Clausen in her book, Health Care Written Taking
on the Challenges of Health Care in Africa: “As the types of illnesses change throughout the continent,
half the population still lacks adequate health services.”11

Meaning the chances of dying increase per second than the increase of getting adequate health care
even here in South Africa. Lily identify that fewer than 50% of Africans have access to modern health
facilities, also the fact that there is a shortage of trained health care professionals from Africa because
many of them prefer to live and work in places like the U.S. and Europe. The ratio is much great 1: 4 :5
meaning 1 doctor equal to 4 nurses equal to 5 patients, but this ratio is never met, plus the issue of
maintenance of equipment, as everybody’s property is usually no one’s, and therefore no one take
responsibility for keeping it up to date and making repairs.12

10
Judgement
11
Challenges of Health Care in Africa, June 16, 2015| by Lily B. Clausen
12
Para [7] Challenges of Health Care in Africa
 Access to health care has a much bigger pain to patient’s as well as to health administration, issues such
as corruption, corruption diverts much - needed resources away from health care delivery and reduces
patient access to services. Examples included medical staff who sell drugs that should be free, and theft
(for personal Use) or diversion (for private sector resale) of drugs and supplies at government storage
and distribution points. In addition, bribes to gain approval for drug registration or to pass drug – quality
inspections are resulting in fake drugs “legitimately” entering markets.13

CURRENT STATUS OF ACCESS

TO HEALTH CARE SERVICES
IN SOUTH AFRICA
South Africa remains an unequal society, where the quality and type of services people receive tends
to be influenced significantly by their socio-economic status and ability to access to services, regardless
of the level of need for care. The majority of people in South Africa depend on public health care
facilities to access their right to health care services. A small number of people are able to afford private
medical care. In its 2016 General Household Survey Statistics South Africa reported that only 17 of every
100 South Africans have medical insurance, and as many as 45 million or 82 out of every 100 South
Africans fall outside the medical aid net and, are largely dependent on public health care. The number of
people who depend on the public health system in South Africa is likely to be much higher as a number
of people who are undocumented also rely primarily on the public health system to access health
care services.

High demand on the public health care system impacts timeliness, range and quality of services provided
to users. Private healthcare is administered by medical scheme providers which are costly and out of
reach for the majority of people seeking access to health care services. An inquiry by the Competition
Commission revealed that only 17% of the population, primarily in urban areas are able to afford private
health care which is provided by approximately 5000 private practitioners. The services provided by the
private sector therefore invariably meet standards characterised by high quality, timeliness, and ease of
access for those who are able to afford the service. The private sector health industry is

however not without challenges which have implications for its users and
providers. Many of these relate to a lack of competition in respect of pricing, and charges for treatments
that may not always be necessary. In contrast the remaining 80% of the population are serviced by
approximately 4000 public health facilities, which despite high levels of expertise remain in a constant
battle to adequately meet demands.14

13
http://standford.io/1GcaNc4/search.
14
Page 5, para [2] Final Access to Health Care Booklet South African Human Rights Commission Website:
www.sahrc.org.za
Some of the challenges experienced in respect of access to health care services are recorded in the
reports by the SAHRC arising from its investigations into Access to Healthcare Services and into Access
to Emergency Medical Services in the Eastern Cape respectively. The SAHRC found that public health
care services are largely under-resourced in terms of personnel, availability of suitable medication and
infrastructure; conditions which are adversely impacting the ability to deliver adequate care to poor
people, especially to those in rural areas. The reports noted serious shortages of emergency transport,
long waiting times, and over-crowding, compromised cleanliness, outdated technology, under-staffing
and discriminatory attitudes towards vulnerable groups as major concerns.

MECHANISMS TO ENFORCE THE

RIGHTS OF HEALTH CARE USERS
Any person may lay a complaint about the manner in which he/she was treated at a health
establishment. The National Health Act provides that every health establishment must establish an
internal procedure for the laying and investigation of complaints. Such procedure must be displayed in
all health facilities, in a manner that is visible to any person entering such a facility, and the procedure
must be communicated to the users regularly. Private health care facilities must allow users to lodge
complaints with the head of the facility. This means that any user who has a complaint must first lodge it
within the relevant facility, the procedure for such should be displayed for all to see and in the absence
of such a communication, a user can request such a procedure from any of the staff working in the
facility. The following bodies also handle health care complaints, with the aim of protecting and
promoting the health and safety of users of health services:

The Office of the Health Ombudsman15

The Health Ombud is located within the OHSC to manage complaints and carry out investigations. The
office deals with complaints that include inappropriate diagnosis, treatment or care; unauthorised
disclosure of information; poor quality of health service provided and unsatisfactory management of
prior complaints. The Office of the Health Ombudsman’s 2017 Report into the Circumstances
Surrounding the Deaths of Mentally Ill Patients in Gauteng Province (commonly referred to as the Life
Esidimeni report) and the subsequent 2018 arbitration hearing on the matter by Justice Moseneke
helped to build public confidence in institutions dealing with access to health care services.
The office can be contacted through the OHSC details provided above. The OHSC can be contacted at
Private Bag X21 Arcadia 0007, Tel: 012 339 8699; national call centre on toll free number: 080 911 6472
or email: complaints@ohsc.org.za inspections and certification of health facilities.

What I dislike about the issue of access to health care is these who suppose to deliver these service,
when and if they find themselves in the predicament that many people who long for adequate health
care service finds them, then they wanted to be treated with utmost high attention even so if it one of
their family members then all attention should be focus at their relatives because they are in need
forgetting how they ill – treat other patients and citizens acquiring access to health care services.
Private Bag X21 Arcadia 0007, Tel: 012 339 8699; national call centre on toll free
number: 080 911 6472 or email

15
Health Ombudsman: Investigative Authority in Health Sector.
BIBLIOGRAPHY:

1. SOOBRAMONEY v MINISTER OF HEALTH, KWAZULU-NATAL 1998 (1) SA

765 (CC); Case Summary

2. Medical Xenophobia: Zimbabwean access to health services in south

Africa Jonathan Crush and Godfrey Tawodzera: series editor: prof.
Jonathan Crush

3. THE National Health Act GUIDE THIRD EDITION Edited by SASHA

STEVENSON

4. Inequities in access to health care in South Africa Article in Journal of

Public Health Policy · June 2011 Original Article: Bronwyn Harris Diane
McIntyre*, Jane Goudge, John E. Ataguba, Nonhlanhla Nxumalo,
Siyabonga Jikwana, and Matthew Chersich

5. FULL JUDGEMENT CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT

32/97; SOOBRAMONEY v MINISTER OF HEALTH, KWAZULU-NATAL 1998
(1) SA 765 (CC)

6. FINAL Access to Health Care Educational Booklet South African Human

Rights Commission Forum 3, Braampark, Braamfontein, Johannesburg
Tel: 011 877 3600 ;Website: www.sahrc.org.za; E-mail: info@sahrc.org.za
/ complaints@sahrc.org.za; Twitter: @SAHRCommission ; Facebook: SA
Human Rights Commission

7. Challenges of Health Care in Africa, June 16, 2015| by Lily B. Clausen;

http://standford.io/1GcaNc4/search.
 RESULTS
Total = 18 / 20 (90%)