Johannesburg, 5 March 2019: The Gauteng Department of Health issued Circular Letter 5 of 2019, dated 20 February 2019 (“Circular”) in which it sought to limit access to health care services by people who are not South African through a requirement that they pay for all services. The Circular makes reference to a communique from the National Department of Health, which has since been withdrawn.
SECTION27 wrote yesterday to the Gauteng Department of Health on behalf of the Treatment Action Campaign asking the Department to withdraw the circular. We await a written response to this letter but welcome media reports yesterday evening that the MEC of Health Gwen Ramokgopa has withdrawn the Circular. This has been confirmed by Director of Communications for the Gauteng Department of Health Lesemang Matuka.
It is important to note that the Circular would have violated the rights of people living in South Africa and contravenes several laws. While we welcome the withdrawal of the Circular, in the interests of clarity on this important matter, we lay out below the law as it relates to access to health care services for non-South Africans. For further detail, please see the letter sent to the Department here and an easy to use pamphlet to assist migrants to access services here and here.
What the law says
The Constitution doesn’t afford rights only to citizens: it affords rights to everyone. The Constitution provides in section 27 that everyone has a right to have access to health care services, including reproductive health care services and that no one may be denied emergency medical treatment. The Constitution gives extra protection to children, stating in section 28(1)(c) that every child has the right to basic health care services, without qualifying this right by reference to the availability of resources.
The National Health Act 61 of 2003 goes on to specifically provide that, so long as they are not members or beneficiaries of medical schemes, all pregnant and lactating women and all children below the age of six (regardless of nationality) are entitled to free health care services; that all persons (regardless of nationality) are entitled to free primary health care services; and that all women (regardless of nationality) are entitled to free Termination of Pregnancy services under the Choice on Termination of Pregnancy Act 92 of 1996 at public health facilities.
Finally, the Uniform Patient Fee Schedule makes clear that refugees, asylum seekers and undocumented migrants from SADC states who go to hospital in South Africa are entitled to be treated in the same way as South African citizens and to be means tested to determine their ability to pay for services.
As such, the current legal framework for access to health care services by anyone other than a South African citizen is as follows:
- Everyone (regardless of citizenship or status) is entitled to free primary health care services.
- Everyone (regardless of citizenship or status) is entitled to access comprehensive HIV and AIDS care, management and treatment.
- All pregnant and lactating women (regardless of citizenship or status) are entitled to free health care services, including both primary health care services and hospital-based care.
- All children under the age of 6 years old (regardless of citizenship or status) are entitled to free health care services, including both primary health care services and hospital-based care.
- Refugees, asylum seekers and undocumented migrants from SADC states are entitled, when accessing hospitals, to be treated in the same way as South Africans and to be subjected to a means test to determine their ability to pay for services.
The Circular goes against this legal framework and is unlawful.
One of the primary protections of socio-economic rights in the Constitution is that we cannot go backwards: if a person is able to access services, government cannot put in place measures to stop them from doing so. This is called regression and is contrary to the requirement for the progressive realisation of socio-economic rights. The Circular constituted a regression in access to services in that it takes away rights and access without giving a clear justification for doing so. That health care users are not South African is not a justifiable reason to treat them differently. And the Constitutional Court has held many times that government cannot just say it does not have enough money to justify failure to realise rights. It must show the detail and use its available resources to realise rights. That is not the case here.
The Circular also runs contrary to provisions in the National Health Act that privilege pregnant women and children to ensure their access to services by providing for free primary and hospital-based care for them.
Finally, the Circular constitutes a violation of the rights of people in South Africa who are not South African to dignity and equality.
Apart from being unlawful, the Circular would also have potentially negative implications for public health given the public health implications of failure to treat people who are living in South Africa and who have communicable diseases but are not South Africans or refugees. Such an approach will have harmful consequences for South Africa’s attempts to reach the goals that it has set itself including reaching compliance with the Sustainable Development Goals and the 90-90-90 HIV treatment target.
We welcome the Gauteng Department of Health’s withdrawal of the Circular. In a country with limited resources and a strained health system, there will always be pressure to cut spending. We cannot, however, do so in a way that violates constitutional rights.
For comment please contact Nontsikelelo Mpulo on 082 782 7143 or on email at email@example.com
- Treatment Action Campaign
- Médecins Sans Frontières (MSF)
- Southern African HIV Clinicians Society
- Rural Health Advocacy Project
- Lawyers for Human Rights
- Sonke Gender Justice
- Consortium for Refugees and Migrants in South Africa (CoRMSA)
- Johannesburg Migrant Health Forum
- Sophiatown Community Psychological Services