Opinion: What the law says about medical xenophobia in South Africa
The South African Constitution says the most basic forms of healthcare should be made accessible to all who reside in South Africa. However, this is not the lived experience of so many.
The COVID-19 pandemic has put an additional strain on healthcare systems. These systems have long been overburdened and under-resourced even in normal times and have exposed the vulnerabilities of high-risk population groups in accessing critical healthcare services.
Some migrants and refugees are denied access to healthcare simply because they are foreign nationals. There have been several instances of migrants and refugees being denied treatment solely based on their nationality. This has been coined ‘medical xenophobia’.
Medical xenophobia refers to the attitudes and practices of medical practitioners and healthcare workers towards a certain group, more specifically refugees and migrants, resulting in the medical mistreatment or maltreatment of the person seeking healthcare.
Constant fear of facing medical xenophobia has deterred many migrants and refugees from seeking medical treatment unless it is life-threatening. Some have turned to our legal advice office at SECTION27 for assistance.
However, not all instances of poor treatment are ‘medical xenophobia’.
For it to be xenophobic, medical treatment must be wrongfully denied on the grounds of someone’s nationality or legal stay. There are other grounds that medical care might be wrongly denied. The healthcare system in South Africa is found to be in an ‘advanced state of disrepair in large parts of the country’ and staff can be highly stressed in such environments, and South Africans also face discrimination in accessing medical care.
Experiences on the ground
On 20 April 2021, *Faith, a migrant from Ethiopia, who cannot speak nor understand English well and speaks with a heavy accent, gave birth by emergency C-section. She still has nightmares and wakes up crying in the middle of the night when she remembers her traumatic birth. She believes because she is a foreign national and that her documents have expired, she was treated differently.
She recalls going into labour at 40 weeks, but because her water hadn’t broken yet, she was experiencing irregular contractions. She was admitted and discharged the following day. The nurses told her it was Braxton (Hicks) contractions, and she should return should she continue being in pain.
Faith says during the night her pain became worse and she returned to the hospital where she experienced the most terrible treatment. She was told to put her mask on and lie on the bed. When she screamed because of the pain, she says she was slapped and told to shut up because she was making a noise. She was told can go back to her country to give birth or stay strong as she is not the first person to give birth, She begged for painkillers and was given none until the doctor came in and informed staff that she needs to go for an emergency c-section as her baby was in distress.
Faith delivered a healthy baby girl, which is not always the outcome in such cases.
*Jack is a 42-year-old male from the Democratic Republic of Congo who is in South Africa on an asylum seeker permit. He suffers from thrombocytopenia and cannot live without his medication as he may suffer a heart attack. His condition prevents him from working. Prior to 2020, he got his monthly medication from the closest public facility to him in Gauteng at no charge. This has changed.
The Gauteng Department of Health Circular 27 of 2020, stated that all non-South African citizens (except refugees and asylum seekers) are classified as full-paying patients. was later withdrawn, but many health officials still refer to it when denying foreign nationals healthcare services. Foreign patients are denied their patient files or medication at the pharmacy if they cannot pay a certain fee. He cannot afford the R1 500 of his medication and regardless of him having a valid asylum seeker permit, government facilities refuse to help him and his health hangs in the balance.
Constant fear of facing medical xenophobia has deterred many migrants and refugees from seeking medical treatment unless it is life-threatening.
What the law says
When it comes to providing specialised services such as kidney dialysis and organ transplants, the South African healthcare system must apply a principle called ‘progressive realisation’. This is based on the idea that the state must provide as much as it can, within the limitations that exist. They must also try to improve the realisation of socio-economic rights for everyone in South Africa.
This issue has been explored in South African court cases.
In one case heard by the Constitutional Court, the court held that the right not to be refused emergency medical treatment meant that a person who suffers a sudden catastrophe that calls for immediate medical attention should not be denied an ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment. The applicant in this case suffered from chronic renal failure and required dialysis treatment two to three times a week to keep him alive. The court decided that this was not an emergency which called for immediate remedial treatment while the state must always provide everyone with emergency medical treatment, this does not include ‘chronic illnesses for the purpose of prolonging life’. The provision of this type of specialist care (such as dialysis) should be administered by hospitals to their best ability.
So, patients must be placed in a system that ‘queues’ them depending on their medical needs. In this system, refugees, asylum seekers, and permanent residents must be treated the same as South African citizens. There have been cases in which refugees were not provided with specialist services due to their ‘nationality’. If this treatment was denied solely because of the patient’s nationality, it is unconstitutional.
The South African Constitution entitles migrants and asylum seekers to the same free basic health services as citizens, including maternity care. But as we have found, and as confirmed by activist organisations such as the Treatment Action Campaign (TAC) and foreign nationals themselves, many are mistreated at the hands of hospital and clinic staff, with stories of verbal abuse, neglect, and assault. Some say they have been forced to pay for medical services even in an emergency.
The Uniform Patient Fee Schedule sets out who must pay for certain services at a South African health facility, which is explained in the Classification of Patients for the Determination of Fees. Fees are not payable for “free services”.
The following foreign nationals should be means-tested (in the same way as South African citizens) at the hospital:
- Foreign nationals who have permanent or temporary residency in a passport, and
- Anyone from the Southern African Development Community (SADC) region who is undocumented.
The hospital should look at what they earn and decide what fee they should pay. Refugees and asylum seekers are subject to the same test. The hospital decides what fee they must pay, depending on their income.
It means that the following people will have to pay full fees at the healthcare facility, and cannot access a means-test:
- Undocumented people from outside the SADC region and people on a tourist/visitor’s visa.
Women bear the brunt
Migrant pregnant women often bear the brunt of poor access to care. In some cases, those at the hospital reception or nurses on duty tell migrant, pregnant women, that they cannot be admitted because they have foreign identity documents, for example, an asylum seeker permit, passport, or tourist/work visa. These women often wait for hours without being attended to and are ultimately turned away without receiving the necessary medical attention. Some migrants report there are hospitals that turn them away immediately.
This is traumatic for migrant mothers who fled their home countries seeking refuge and a better life in South Africa.
Through cases reported at SECTION27’s Advice Office, we are aware that migrant women accessing maternal care routinely face discrimination and abuse within the public healthcare system. We often hear stories of children dying or left disabled because of alleged ill-treatment or neglect by hospital staff.
Ill-treatment causes unnecessary suffering and poor maternal and other health outcomes. It also deters women from using health services, which in turn worsens maternal mortality.
Some women who are fearful of being charged money and mistreated choose not to book their place at a hospital for delivery and often wait until the last minute to seek care because this means they must be treated as an emergency. Unfortunately, this also means that fear of abuse and being charged is forcing them to risk their own and their baby’s health.
Confusion over COVID-19 vaccinations
Foreign nationals living in SA who have some form of identification are eligible for a vaccination against COVID-19 but there is much confusion about their eligibility, also among healthcare workers. Some foreign nationals say they won’t get vaccinated for fear of deportation. Meanwhile, the question of how to register those without identity documents lingers.
We are constantly fielding queries from foreign nationals who are confused about whether they are entitled to register for vaccinations and where to get vaccinated. They express fear of getting vaccinated as they have expired passports, visas, and refugee status, which they’ve been unable to renew due to COVID-19. But any information gathered during COVID-19 testing or vaccination cannot lawfully be used to police immigration. This does not mitigate fear. Unvaccinated foreign nationals risk getting seriously ill, potentially risk death, and can make those around them sick if they suffer from COVID-19 or any other communicable diseases. It is therefore imperative that government provides communication targeting healthcare workers so that they also know that non-citizens are eligible for the vaccine and should receive it.
The problem partly stems from misconceptions about the impact of migrants on South Africa’s healthcare system, with the public and even many government authorities believing that women who are foreign nationals are burdening the system by coming to the country specifically to give birth.
So, how do we respond to this?
When dealing with claims that ‘foreigners burden the healthcare system’, it is important to remember that in South Africa, only 3% of the population are foreign-born, and the number of migrants and refugees using the South African healthcare system is most likely in line with this percentage.
Furthermore, research has found that many migrants in the SADC region are not moving in search of healthcare, but are typically healthy, as they need to be in good health to travel. This is what is called the ‘healthy migrant effect’.
Foreign nationals, just like South Africans, pay for certain healthcare services. They are either subject to the same means-test hospital fees, or they are subject to the highest fees (if undocumented and not from SADC).
The problem is not migrants’ use of the healthcare system but rather how government fails to plan budgets with migration in mind. Internal migration, for example, people moving within the country of their birth between provinces, accounts for much more than cross-border migration in SADC. For example, when an entire family moves from the Eastern Cape to Gauteng, the cost of treating that family in Gauteng was not budgeted for. So, internal mobility is not considered when planning healthcare budget allocation. Furthermore, some budget and fiscal planning are based on outdated population statistics. It is crucial that we use updated population statistics and research when planning for such services.
The laws about foreign nationals’ access to healthcare are not consistent and create confusing situations for medical staff. People working in hospitals are not given clear guidance on who can be treated. This is not helped by the fact that the Department of Health has published circulars or memos which confuse medical staff about migrants’ and refugees’ rights to access health care.
More must be done
Aside from the work of organisations like SECTION27, TAC, and Sonke Gender Justice, more still needs to be done by embassies and other NGOs to ensure foreign nationals are aware of their rights as far as access to healthcare services is concerned. It is also important to inform them on where to access these services so that they can hold public healthcare providers accountable based on knowledge of their rights.
Foreign nationals generally appear to know little about their rights in South Africa or how to lodge complaints as healthcare users – something they hesitate to do anyway for fear of retaliation. Some seeking help from our Advice Office said there was no point in complaining because it would just fall on deaf ears.
Complaints procedures in many parts of the country do not function properly and there is very poor oversight or accountability for abusive staff and system failures. Public health facilities commonly do not respond to complaints anyway and when they do, it is often a lengthy, protracted process. Some medical staff complain that their working conditions are so difficult that dealing with complaints is impossible.
High-quality and respectful healthcare is crucial to prevent maternal death and mistreatment of patients, regardless of nationality. The rights envisioned and set out in the Constitution of South Africa provide for all people within South Africa, regardless of their nationality or legal status. It is time that the vision and rights enshrined become a reality, so that all who live in South Africa, foreign or South African national, can have access to an inclusive health care system without bias.
*Mphahlele is a paralegal at SECTION27’s Advice Office.
NOTE: This is an article written by an employee of SECTION27. Spotlight is published by SECTION27 but is editorially independent, an independence that the editors guard jealously. The views expressed in this article are not necessarily those of Spotlight.