South Africa: High Court orders officials to protect pregnant women and young children’s right to healthcare
Court: High Court of South Africa, Gauteng division, Johannesburg
Date of judgment: 14 April 2023
The court overturned provincial health policies that restricted pregnant and lactating women and children under six from accessing free healthcare based on their nationality and documentation status, and ordered health officials to take steps to ensure all such patients were able to access free healthcare at public hospitals and clinics.
Section27 launched this case in May 2022, following the denial of the right to access healthcare for pregnant women, lactating women, and children under the age of six (the patient group). The co-applicants include two woman who were denied access to free health services while pregnant, and a mother whose young child was also denied access to free health services.
The respondents included Gauteng’s Member of the Executive Council (MEC) for Health, the Gauteng Department of Health, national health officials, and the Charlotte Maxeke Johannesburg Academic Hospital (Charlotte Maxeke). The case was placed under case management following the respondents’ failure to respond timeously.
The second to fourth applicants are foreign nationals who were denied access to healthcare when approaching public facilities and were asked either to pay in advance for treatment or sign acknowledgement-of-debt forms undertaking to make payments if they received treatment.
The second applicant is an unemployed asylum seeker who sought medical treatment following an assault while six months pregnant. She approached Steve Biko Academic Hospital in Tshwane and was asked to pay R2 000 before she could receive treatment; she left the hospital without getting medical attention. At eight months of her pregnancy, she was referred to Charlotte Maxeke hospital because she was experiencing high blood pressure which posed a risk to her pregnancy; Charlotte Maxeke staff asked her to pay R20 000 in order to receive treatment or give birth at the hospital. She approached Section27 who intervened on her behalf with the CEO of the hospital to secure an appointment for the delivery of her baby. Unfortunately, the day before the appointment she lost her baby.
The third applicant is an unemployed Zimbabwean national whose child was born in South Africa. The child was born with health complications and underwent a surgery at Charlotte Maxeke, and required several additional procedures. However, in follow-up appointments at Charlotte Maxeke, hospital staff required her to sign an acknowledgment of debt to pay R34 404 for her child’s first surgery through monthly instalments, and was later forced to undertake to pay amounts of R43 196 and R50 000 for further procedures, and another R5 000 to open a file.
The fourth applicant is a Zimbabwean asylum seeker who at six months pregnant approached Charlotte Maxeke and was asked to pay over R1 000 for various consultations, and an additional R15 000 for delivery. She was unable to pay this amount and approached Section27 for assistance.
In correspondence between Section27 and the relevant hospitals, hospital staff said their actions were in line with a 2020 policy issued by the Gauteng Department of Health which classifies asylum seekers as full-paying patients and that undocumented foreigners will only receive free treatment in the event of an emergency. The policy exempts pregnant and lactating women and children under the age of six from payment, but officials did not appear to be applying this exemption.
Section27 also drew the Court’s attention to various regulations, policies and circulars issued by that Gauteng health officials have relied on to deny migrant women access to health care when pregnant, or when seeking treatment for young children.
These discriminatory healthcare practices contradict section 4(3)(a) of the National Health Act which obliges public clinics and community health centres to provide free healthcare to this patient group. Section 27(2) of the Constitution also grants everyone the right to access healthcare within the parameters of available resources.
The Court found the Hospital Ordinance 14 of 1958 and related Regulations issued by the Gauteng government to be invalid to the extent that they require people from the patient group to pay for medical treatment when they have a right to free healthcare.
The Court further ordered Gauteng’s MEC for Health and the provincial Department of Health to amend the 2020 policy, by October 2023, to expressly entitle the patient group to free public healthcare irrespective of their nationality and documentation status, as long as they do not have medical aid and have not entered South Africa specifically for healthcare.
The Court also ordered the national Minister of Heath to issue a circular to all provincial health departments by 15 May 2023 to communicate the rights of the patient group to access free healthcare at any public health facility. The Minister was further ordered to display posters in health facilities across the country by 17 July 2023 stating that:
“All pregnant women, all women who are lactating, and all children below the age of six are entitled to free health services at any public health establishment irrespective of their nationality and documentation status, unless: They are members or beneficiaries of medical aid schemes, or they have come to South Africa for the specific purpose of obtaining health care.”
All the respondents to the case are required to file affidavits with the court within five days of these deadlines to confirm they have complied or to give reasons for failing to comply. The respondents must also appear before the Court on 23 October 2023 to report on their compliance with the order of the Court.
This order puts in place important measures to end unlawful and discriminatory practices perpetuated against vulnerable women and children in South Africa, and affirms the rights of non-South African nationals to human dignity and equality irrespective of their nationality and documentation status. The measures put in place by the Court also take steps to ensure that the rights of such patients are clearly communicated and understood at all levels of the healthcare chain and among patients in public health facilities.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].