Legal Talk

State owned hospitals are not compelled to provide medical treatment to patients.

Chronic kidney disease affects about 14% of the population in South Africa.Providing dialysis to patients is expensive and given the limited financial resources available and few dialysis facilities in state hospitals, many hospitals are unable to accommodate the large number of people requiring dialysis and many needy patients are denied dialysis treatments.

Our Constitution says that no one may be refused emergency medical treatment and that everyone has the right to life. But state owned hospitals are not compelled to provide medical treatment to patients, if there are insufficient state resources. In 2007 Mr. S was in an irreversible final stage of chronic renal and needed renal dialysis to prolong his life.

As the hospital only had 20 dialysis machines available and limited facilities, the hospital informed him that it could no longer provide him with renal treatment. The man took the matter to court on the basis that his rights as contained in the Bill of Rights, were violated.

The high court did not agree and dismissed Mr S's application. The high court said that the rights in the Bill of Rights were not absolute which could be exercised without limitation. The man took the matter to the Constitutional Court, who upheld the High Court's ruling of refusing renal treatment. The Concourt said that a person's constitutional right to emergency healthcare, access to housing, healthcare, food, water and social security were completely dependent on what resources are available for such purposes and that these rights were limited by reason of the lack of resources.In terms of the National Health Act medical services are restricted to South African nationals only or to people who have received refugee status. In October 2019, the high court ruled on a matter where a patient who was an Ethiopian national brought an interdict to compel the Helen Joseph Hospital to administer renal treatment to her. The woman came to South Africa in 2010 as an asylum seeker, but her application for asylum was rejected. She was however granted a temporary permit, which expired in 6 March 2019. In January 2019, she became seriously ill. By the end of February, she reached the irreversible end stage of kidney failure, and needed to be put on a long term chronic outpatient dialysis, until a transplant organ became available. The hospital informed her that in terms of the prevailing legislation, she was not eligible to continue to receive dialysis treatment to her as she was not a South African national nor did she have residency status to be in the country. The woman took the matter to court, on the basis this was inconsistent with the Bill of Rights in the Constitution and a violation of her rights. The High Court found that she did not qualify for such medical treatment. In terms of the Health Professions Council of South Africa Guidelines, on the situation of withholding treatment due to scarcity and allocation of resources, it says that there are circumstances when withholding treatment even if it is not in the best interest of the patient, is permissible.

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.