OPINION: Struggle for migrant health rights still far from over after landmark judgment In a landmark court decision, the Gauteng High Court recently confirmed the rights of all pregnant and lactating women and children under age six to access services for free at all levels of care. PHOTO: Jana Hattingh

OPINION: Struggle for migrant health rights still far from over after landmark judgment 

Comment & Analysis

On 14 April 2023, the High Court in Gauteng confirmed the rights of all pregnant and lactating women and children under age six to access services for free at all levels of care, including hospitals. This landmark order comes eleven months after SECTION27 and three affected people launched court proceedings against the Gauteng Department of Health, the National Health Department, and Charlotte Maxeke Johannesburg Academic Hospital for excluding asylum seekers, undocumented persons, and people affected by statelessness from receiving free health care.

The application sought to confirm the progressive long-standing national legislative position that all pregnant and lactating women and children under six, irrespective of nationality and documentation status, have the right to access free health services at all public establishments in the country. This is also international best practice because both groups are universally recognised as being particularly vulnerable and in need of specialised care before, during, and after birth as an effective mechanism to reduce maternal and child mortality and morbidity – an area in which South Africa has made great strides, but still has a way to go together with the rest of the continent, according to a statement released by the World Health Organization at the end of 2022.

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The order granted by Deputy Judge President Roland Sutherland, which applies across the country, is a vindication of constitutional rights, such as section 27(1) which guarantees everyone the right to access healthcare services, including reproductive health care, as well as section 28 (1)(c) that affirms the right of every child to basic healthcare services, as an immediately realisable right.

As pointed out by our colleague, Sibusisiwe Ndlela, an attorney in the Health Rights Programme at SECTION27, “This order is a great victory for reproductive health rights in South Africa. We are a country that prioritises women’s rights and the choice whether to have children and to do so safely is fundamental to women’s health rights and well-being.”

Health Minister Dr Joe Phaahla.
Health Minister Dr Joe Phaahla. PHOTO: Elmond Jiyane/GCIS

The Department of Health has until 15 May to issue a circular to all provinces, recording the rights of all mothers and children to free health services, regardless of nationality. The Department must also put posters and notices in all health establishments by no later than 17 July, which clearly states the legal position. The Gauteng Department of Health was given 6 months to amend its policy.

The High Court further ordered that the respondents appear before the court on 23 October 2023 to provide a comprehensive report on their compliance with the order.

How we got here

At the height of the COVID-19 pandemic in 2020, SECTION27 and partner organisations started to receive several reports that public hospitals in Gauteng had begun to re-classify migrant persons as full-paying patients, except for refugees with valid documentation. After querying the Gauteng Department of Health, they advised that they had issued the Policy Implementation Guidelines on Patient Administration and Revenue Management (“the 2020 Policy”). While the policy enabled mothers and children who are refugees with valid documents to access free health services, it excluded those who are asylum seekers, undocumented, and affected by statelessness.

mother nursing baby
On 14 April 2023, the High Court in Gauteng confirmed the rights of all pregnant and lactating women and children under age six to access services for free at all levels of care. PHOTO: Unicef

The 2020 Policy came as a surprise to migrant health users, doctors and health activists alike, as they seemed to have been introduced overnight without forewarning and worse so, during a global pandemic. There were no contingency plans announced by the hospitals or the Gauteng Department of Health to support migrant persons who depended on government to provide health services for their well-being and, at the time, for their survival. In fact, according to Hlengiwe Mtshatsha, the Manager of the Refugee Law Clinic at Lawyers for Human Rights, during the two-year national lockdown, the Department of Home Affairs’ Refugee Reception Offices were closed. “That meant asylum seekers and refugees could not renew their permits. The Department of Home Affairs then issued a Ministerial Directive, which clearly stated that no person should be penalised for the expiry of their permits during this period and that de facto the permits were extended by the Directive,” said Mtshatsha.

Disturbingly, the Department of Home Affairs failed to communicate the Ministerial Directive to hospitals. As a result, some refugees (including pregnant women and children) had expired documents, which led them to be classified as full-paying patients in Gauteng hospitals, because they did not have valid documents. Without official communication, hospitals considered the situation beyond their control and continued to apply the 2020 Policy. (For more, see Part 3 of SECTION27’s online publication Free Healthcare Services in South Africa: A Case for all mothers and children.)

During the almost three-year tenure of the unlawful “2020 Policy”, the excluded category of people was subject to unimaginable suffering.

nurse tending to a neonate in an incubator at leratong
South Africa has made great strides in reducing maternal and child mortality but still has a way to go together with the rest of the continent. PHOTO: Denvor De Wee/Spotlight

Ms Grace Jean*, an asylum seeker from the Democratic Republic of Congo was eight months pregnant and was suffering from high blood pressure when she sought medical assistance at Yeoville Clinic. Due to her high blood pressure, she was considered to have a high-risk pregnancy and was referred to Charlotte Maxeke Academic Hospital (CMJAH). On the two occasions she sought care at CMJAH, she was told to pay R20 000 to be given a hospital file number and be treated. Grace and her husband were unemployed and could not afford the exorbitant fee requested. Her pregnancy hung in the balance and regrettably, she lost the baby.

Healthcare professionals are constantly being put in a precarious position where on the one hand, they are bound by their professional ethics to provide medical assistance as captured by the Hippocratic Oath and the South African Medical Association’s Doctors Pledge and, on the other hand, they are required to adhere to unlawful policies by the Department of Health that discriminate against health users based on nationality.

Ms Fezal Blue*, an asylum seeker living with HIV, was pregnant and in labour when she approached the emergency room at CMJAH. The administrative clerk on duty turned her away because she could not produce a South African identification document and was not carrying her asylum seeker permit at the time. She then approached two other hospitals in the area, which also refused her medical care. As a result, she gave birth in the backseat of a car on her way to a fourth hospital. Fortunately, both mother and baby survived, and the baby was able to receive nevirapine, preventing mother-to-child transmission of HIV.

The application by SECTION27 and the three affected people was also supported by medical organisations such as Doctors Without Borders (MSF) and the Southern African HIV Clinicians Society (SAHCS). They provided evidence on how the inability to provide healthcare services to patients has been a source of great distress for doctors and other healthcare professionals.

They are constantly being put in a precarious position where on the one hand, they are bound by their professional ethics to provide medical assistance as captured by the Hippocratic Oath and the South African Medical Association’s Doctors Pledge and, on the other hand, they are required to adhere to unlawful policies by the Department of Health that discriminate against health users based on nationality. Doctors have described this ethical dilemma as being complicit in human rights violations in their work environment, despite their own professional and sometimes personal commitments to human rights.

The stress of this dual loyalty has been exacerbated by the refusal of senior officials in hospitals and the Department of Health to adequately respond, guide, and support doctors who report unlawful conduct and discriminatory practises against migrant persons in the public healthcare system. As SECTION27 understands, health professionals who advocate for their patients and seek to understand the law and the rights it affords migrant persons are often shunned and informed to “just do their jobs” and follow hospital policy.

woman attending to a newborn in a hospital crib/cot
Civil society has for a long time put pressure on the health department to reverse policy directives, which act as obstacles for migrant persons to access healthcare services in South Africa. PHOTO: Denvor De Wee/Spotlight

A trail of discriminatory institutional policies in Gauteng

For a long time, civil society has put pressure on the health department to reverse policy directives, which act as obstacles for migrant persons to access healthcare services in South Africa. In 2007, following pressure from civil society, the National Department of Health released ART and Revenue Directives, which clarified that asylum seekers and refugees – with or without permits – were exempt from paying for diagnostic services and ART and like South Africans, would be means-tested based on income to access other health services. However, in 2008 over 15 civil society organisations made a joint submission to the South African National AIDS Council Plenary where they advised that the directives needed “to be properly communicated to healthcare workers, senior public health officials, particularly the CEOs of clinics and hospitals”, as they had received various reports that migrant persons continued to be denied access to ART and other basic services in the public sector.

In 2013, the Gauteng Department of Health released the “Non-South African Citizens (Foreign Patients) Guidelines” (“2013 Guidelines”). This policy demonstrated a clear and direct intention to discriminate and systematically exclude migrant persons from accessing health services. Effectively, the 2013 Guidelines instructed health facilities to obtain full payment prior to giving healthcare services to undocumented migrants, including those from SADC (Southern African Development Community) countries. This created confusion for health providers and users alike, as the 2013 Guidelines contradicted the National Department of Health’s Uniform Patient Fee Schedule, annexure H (“National Fee Schedule”), which states that persons from SADC countries who enter South Africa illegally should be treated the same as South Africans and be subjected to a means test based on their income. Consequently, the contradiction between the two policies led to an inconsistent application in hospitals. According to Thifulufheli Sinthumule, the Executive Director of the Consortium for Refugees and Migrants in South Africa (CoRMSA), “Without clarity, access to health services depended on the discretion of the staff members on duty, who at times exercised their discretion to the exclusion of asylum seekers and refugees.”

mother with baby holding Road to health card
The South African health authorities have over the years intentionally and repeatedly issued various circulars and instructions aimed at excluding migrant persons, in their varying categories, from accessing healthcare services. PHOTO: Halden Krog/Spotlight

After the withdrawal of the 2013 Guidelines, the National Department of Health in 2019, issued an instruction through a circular to provinces to charge migrant persons, including asylum seekers, with the full costs of healthcare services to be rendered. The only exception would be refugees with valid documentation who would be subject to discounted fees depending on their income.

According to former Deputy Director-General in the National Department of Health, Dr Anban Pillay, the Gauteng Health Department was the only province to instruct health facilities to charge migrant persons with the full cost of services prior to treatment, including before emergency care. The policy directive was immediately rescinded after civil society, journalists, and the Western Cape Department of Health started asking questions. The policy would have contravened section 27(3) of the Constitution, which provides that no one may be refused emergency care, as well as section 5 of the National Health Act which states that “A healthcare provider, health worker, or health establishment may not refuse a person medical treatment”.

Tragically, and despite the withdrawal of the instruction seven months prior, in December 2019, two-year-old Sibusiso Ncube, born to Zimbabwean parents, died after being denied emergency treatment at Charlotte Maxeke Academic Hospital when he swallowed rat poison at home. According to court papers, his mother could not immediately produce the child’s birth certificate or pay R5 000.

It is a significant indictment on the Ministry of Health in South Africa that it has over the years intentionally and repeatedly issued various circulars and instructions aimed at excluding or making it extremely difficult for migrant persons, in their varying categories, to access healthcare services – including the most vulnerable groups such as mothers and children.

Is the past and present a reflection of the future? 

The 2019 iteration of the NHI Bill currently before Parliament entitles all children (including those who are asylum seekers or undocumented migrants) to an undefined set of ‘basic healthcare services’. Regrettably, the Bill makes no reference to free maternal healthcare for everyone living in South Africa. Further, while refugees will be entitled to the same health coverage as South Africans, confusingly, asylum seekers and undocumented persons will only be entitled to pre-hospital emergency medical services and services for notifiable conditions of public health concern (such as tuberculosis, Ebola, cholera, etc.). A clear threat to public health, the Bill removes the right of asylum seekers and undocumented persons to receive treatment for HIV and other communicable diseases. In addition, South Africa currently has no definition for emergency medical treatment and, therefore, the extent of pre-hospital emergency medical services necessary to save lives in an ambulance is anyone’s guess.

A poster by ANC supporter reads NHI is a human rights matter
SECTION27 has been vocal that there are provisions in the NHI Bill that signify an unlawful regression in access to healthcare services by asylum seekers and undocumented migrants. PHOTO: Rosetta Msimango/Spotlight

However, during oral submissions on the NHI Bill in Parliament in December 2021, Head of the Health Rights Programme at SECTION27, Sasha Stevenson made it clear that the Bill signifies “a significant and unlawful regression in access to healthcare services by asylum seekers and undocumented migrants from SADC and their children and this is something [SECTION27] will challenge legally if the [Bill] goes through”.

The good news is that the recent court order sets a good precedent for migrant health rights going forward. For as long as there is no prescribed condition by the Minister to limit the category of persons eligible for free healthcare services in terms of section 4 of the National Health Act, the right of mothers and children to free health services extends to undocumented persons, asylum seekers, and persons affected by statelessness. Even with the introduction of such a condition, it would be regressive in nature and vulnerable to a constitutional challenge since it would be withholding services previously available to migrant health users.

For more on migrant health rights, see SECTION27’s online publication Free Healthcare services in South Africa: A case for all mothers and children.

*Names altered

*Baduza is a legal researcher in the Health Rights Programme at SECTION27 and Mphahlele is a paralegal in the Advice Office at SECTION27.  

NOTE:This opinion piece was written by employees of SECTION27. Spotlight is published by SECTION27, but is editorially independent – an independence that the editors guard jealously. The views expressed in this piece are not necessarily those of Spotlight.