The right to health

A key aspect of being a happy and successful human is health.

Physical, mental, social, emotional and spiritual health all impact on the value and quality of our existence as a person. The Constitutional Court has acknowledged that health care rights must be considered not only individual human autonomy but also human interdependence. In other words in the context of health “no man or woman is an island.” If my neighbour is sick that affects my neighbourhood and me. (Covid-19) A healthy life depends upon social interaction and interdependence: the quality of air, water, and sanitation which the state maintains for the public good; the quality of a person’s caring relationships, which are highly correlated to health. Health is affected by the quality of health care given officially by medical institutions and provided informally by family, friends, and the community.

The Constitution states everyone has the right to access to health care services. And also in section 27(3) that “no one may be refused emergency medical treatment.” Bearing in mind the debates around the introduction of a national health service, the unfortunate events in the public health care system (consider the Life Esidimeni scandal, which involved the deaths of 143 psychiatric patients in Gauteng), and possible epidemics or even pandemics (HIV-AIDS, SARS, Ebola, the Coronavirus, COVID-19 all come to mind), it is worth considering relevant health related court decisions.

Mr Soobramoney, was a 41-year-old diabetic with ischaemic heart disease who had suffered a stroke. His kidneys failed and he was in the final stages of chronic renal failure. His life could have been prolonged by means of regular renal dialysis. The state hospital in Addington, Kwazulu Natal rejected his claim to dialysis. It did not have sufficient resources to treat all such patients. Mr Soobramoney approached the courts alleging that his constitutional rights had been violated by the state. His claim was that patients who suffer from terminal illnesses and require treatment such as renal dialysis to prolong their lives enjoy the right set out in section 27(3) to be provided with such treatment by the state. He argued that the state is obliged to provide funding and resources necessary to comply with its constitutional obligation.
The Constitutional Court emphasized that we live in a society in which there are great disparities in access to resources. Millions of people live in deplorable conditions in great poverty. There is a huge levels of unemployment, inadequate social security; and many do not have access to clean water or to adequate health services. These conditions existed in 1996 when the Constitution was adopted. A commitment to address them, and to transform South African society where human dignity, freedom and equality are an aspiration is necessary. For as long as these conditions continue to exist that aspiration will have a hollow ring.

The Court held that if section 27(3) were to be interpreted as Mr Soobramoney would have it, it would make it substantially more difficult, if not impossible, for the state to fulfil its primary obligation to provide health care services to “everyone.” It would mean prioritising the treatment of terminal illnesses over other forms of medical care and would reduce the resources available to the state for preventative health care and medical treatment for those with sicknesses which are not life threatening. And so, Mr Soobramoney lost his case and died shortly after judgment by the Court.

In another ground breaking matter in 2002 the transmission of HIV from mother- to- child at birth was in issue.

The HIV/AIDS pandemic in South Africa was described as “an incomprehensible calamity” and “the most important challenge facing South Africa since the birth of our new democracy” and government’s fight against “this scourge” as “a top priority”. It “has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy. The government, as part of array of responses to the pandemic, devised a programme to deal with mother-to-child transmission of HIV at birth and identified nevirapine as the drug for this purpose. But the government programme imposed serious restrictions on the availability of nevirapine in the public health sector. An NGO, the Treatment Action Campaign, brought a challenge to the validity of those impediments to obtaining nevirapine.

The courts had to determine whether the measures taken to prevent mother-to-child transmission of HIV were reasonable. The Court accepted that throughout South Africa health services were overextended, and that HIV/AIDS was one of many illnesses that required attention. The courts referred to the huge problems confronting government as a result of the pandemic. And besides the pandemic, the state faced huge demands in relation to access to education, land, housing, health care, food, water and social security. The Court reiterated that the government is obliged to take reasonable measures within its available resources to achieve the ongoing realisation of those rights. In the light of SA’s history this was and is extraordinarily difficult. But it is an obligation imposed on the government by the Constitution.

The Courts effectively found that the national government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. In evaluating the government’s policy, the Court emphasized that the lives of many new-born babies might be saved by the administration of nevirapine to mother and child at the time of birth. The government was ordered without delay to, amongst other things, remove all restrictions that prevented nevirapine from being made available at public hospitals and clinics. The government complied with the court order and many lives were saved.

It seems all humans around the world are going to increasingly rely on government’s support and protection. During the Spanish Flu of 1918 there were no air flights and mobility of humans was restricted to land and sea routes. In the Coronavirus world of 2020 modern air travel and ease of movement means radically more interaction between different groups of people within countries and across national borders. Governments all of the world have no option but to work together to find solutions to all developing health challenges. In the Coronavirus setting, restrictions of rights, such as quarantines and a ban on movements in and out of South Africa and within its borders clearly constitutes a limitation of rights. In South Africa the law and the Constitution guides, demands and constrains the width and depth of the government’s conduct in the health sector. The balancing of all human rights implicated by health crises for all people in the world is tough and requires wise and informed counsel.

By Anton Katz

Anton Katz SC, a senior counsel practicing at the Cape Bar, was a member (2011-2018) of the UN Human Rights Council working group on mercenaries.

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