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[2019] ZAGPJHC 379
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A E v Chief Executive Officer Helen Joseph Hospital and Others (19/15448) [2019] ZAGPJHC 379 (7 October 2019)
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Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
19/15448
In the application
of:
A
E
Applicant
and
CHIEF
EXECUTIVE
OFFICER
First
Respondent
HELEN JOSEPH
HOSPITAL
HELEN
JOSEPH
HOSPITAL
Second
Respondent
MEC
FOR HEALTH: GAUTENG
PROVINCE
Third
Respondent
GAUTENG
PROVINCIAL DEPARTMENT OF HEALTH
Fourth
Respondent
MINISTER
OF HEALTH
Fifth
Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF HEALTH
Sixth
Respondent
J U D G M E N T
MAKUME,
J
:
[1] In this application the Applicant
seeks interdictory and mandatory relief. It is about the
provision of kidney analysis.
[2] The application was brought by way
of urgency. In Part A the Applicant seeks in substance that
first, second and third
Respondents be interdicted from refusing to
administer emergency healthcare to her whilst in Part B the Applicant
seeks an order
declaring that fifth and sixth Respondents policy of
refusing placement of a asylum seekers and or refugees into the
chronic renal
treatment programme, kidney analysis, kidney and renal
transplant to be inconsistent with the Bill of Rights in the
constitution.
[3] The Applicant is an Ethiopian
National. She arrived in this country during the year 2010, and
applied for asylum. She
was issued with asylum seekers temporary
permit which expired on the 6
th
March 2019.
[4] On the 7
th
July 2010
the Applicant was informed by letter that her application for asylum
had been rejected. She thereupon immediately
filed an appeal
with the Refugee Appeal Board on the same day. The outcome of
the Appeal is still being awaited 9 years down
the line. It is
no clear what has caused the delay and since the Department of Home
Affairs is not a party to these proceedings
this court is unable to
make any finding thereon safe to say that an appeal once lodged stays
execution of any order. This
is perhaps the reason amongst
others why the Applicant has not as yet been deported despite her
temporary asylum permit having
expired.
[5] At the time that the Applicant
applied for asylum it would appear that she lived in Manguzi in the
KZN Province. She and
her family later moved to Gauteng
Province.
[6] During January 2019 the Applicant
was admitted at Helen-Joseph Hospital for emergency treatment.
She presented with signs
of a life threatening condition which
required emergency treatment with dialysis in order to prevent her
imminent demise.
[7] On the 28
th
February
2019 the Doctors at Helen Joseph Hospital performed a kidney biopsy
the purpose of which investigation was to accurately
determine the
probability of the Applicants recovery of renal function.
[8] On the 1
st
March 2019
the Applicant signed an agreement with the Hospital and agreed to be
placed on temporary dialysis until further investigations
shall have
been done to asess eligibility for the chronic renal replacement
program.
[9] Doctor Davies who deposed to the
answering affidavit on behalf of the first and second Respondents
testifies that the kidney
biopsy which was done on the 28
th
February 2019 revealed that the Applicant’s condition had
reached irreversible end stage of kidney failure and that this
now
required long term chronic outpatient dialysis until such time as a
transplant organ is available.
[10] On the 2
nd
March 2019
the Applicant was discharged as an inpatient to continue treatment as
an outpatient. On the 3
rd
April 2019 the hospital
handed to the Applicant a Termination of Temporary Dialysis notice to
the effect that in view of her ineligibility
for transplant in
accordance will rational legislation dialysis would be terminated on
the 9
th
April 2019.
[11] There were further negotiations
and discussions between Dr Davis the Applicant as well as with the
Applicant’s brother
which negotiations resulted in her last
treatment being shifted to the 1
st
May 2019.
[12] On the 30
th
April 2019
the Applicant launched a Rule 6(12) application to interdict the
Respondents from terminating her treatment as well
as to challenge
the Policy of the Department and the hospital on the basis of it
being discriminatory against asylum seekers and
in violation of the
right entrenched in the Bill of rights.
[13] At the hearing on the 3
rd
May 2019 an interim order was granted in terms of which the
Respondent undertook to continue providing temporary treatment to the
Applicant pending the finalisation of the application.
[14] On the 5
th
July 2018
before my brother Mabesele J this matter was postponed for hearing to
the 19
th
August 2019. The parties were allowed to
file further affidavits to supplement their original affidavits.
[15] After the third and fourth
Respondents had filed their answering affidavit the Applicant brought
an application in terms of
Rule 30A objecting against the filing of
those affidavits
[16] At the commencement of the
hearing before me on the 23
rd
August 2019 the Applicant
withdrew her application in terms of Rule 30A. The judgment which
follows hereunder deals only with Part
A of the notice of motion.
[17] This matter raises a number of
constitutional issues. The Applicant relies on the bill of
rights which guarantees everyone
the right to dignity, equality and
healthcare on the other hand the hospital is bound by a policy
document as well as
Section 6
of the
National Health Act 61 of 2003
to restrict provisions of such medical services as required by the
Applicant to South African Nationals only or to people who have
received refugee status.
[18] The Applicant contends that for
as long as she is in the country she must not be treated differently
irrespective of whether
or not her presence is lawful or not.
She relies not only on the constitution but also on International
agreements of which
South Africa is not only a member but a
significant signatory.
THE
LAW AND THE POLICIES
[19] The impugned documents which form
the basis of this application are attached to the Applicant’s
founding affidavit marked
ABE2 and ABE3. Their wording is
similar. The relevant portion reads as follows: “This
letter serves
to inform you of the termination of your acute
haemodialysis at Helen Joseph hospital. Due to the limited numbered
of acute and
chronic haemodialysis slots on renal unit and the
increasing population in need of dialysis we can no longer offer you
dialysis
at our hospital due to the following:
b) You are not a South African citizen
and you do not possess verified documents pertaining to refugee
status or permanent citizenship
awarded.
[20] This letter of termination
clearly has its genesis and origin from the “Guidelines for
Chronic Renal Dialysis”
as published by the National Department
of Health and signed by the Minister of Health on the 3
rd
March 2009. In the foreword the Minister says the following:
“
The main objective of these
guidelines is to assist the Clinicians when making decisions
particularly on older patients and those
affected by HIV taking into
consideration the resources available to them.”
[21] The Minister goes on in the
document to refer to what is probably the main reason for exclusion
of the Applicant she says the
following:
“
In South African RRT (Renal
Replacement Therapy) is not freely available, patients who can afford
it or who have medical insurance
maybe able to receive these
expensive therapies in the private sector. For the majority
however this service is not freely
available and is provided to a
select few in some state hospitals. Patients are selected for
dialysis based on state criteria
for acceptance to a transplant
program.”
[22] The Health Professions Council of
South Africa also produced guidelines as far back as May 2007 in
which it deals with the
situation of withholding treatment due to
scarcity and allocation of resources. In the document council
says the following:
“
There are circumstances when
withholding treatment even if it is not in the best interest of the
patient is permissible. This
will apply to continued care in
special Units such as critical care and chronic dialysis units for
end stage kidney failure.”
[23] Lastly it is perhaps the
provisions of
Section 61(3)
of the
National Health Act No. 61 of 2003
which finally determined eligibility of foreigners to such medical
treatment as is required by the Applicants. The Section
imposes
a prohibition on transplant of organs into persons who are not South
Africa citizens or have no permanent residence in
the Republic.
[24] The second Respondent’s
Standard Operating Procedure for the Provisions of long term Renal
Replacement Therapy (LTTR)
provides as follows at clause 1.6.2:
“
All patients considered for
LTTR must produce documentary proof of South African Citizenship or
permanent residence prior to consideration
for LTTR.”
[25] It is common cause that according
to Dr Davies a specialist, and Head of Nephrology at Helen Joseph
Hospital the Applicant
received full and appropriate care including
empiric immunosuppression, haemodialysis, vertilatory support and
management of intercurrent
sepsis during her stay at the Helen Joseph
Hospital. Eventually on the 28
th
February 2019 the
Applicant was diagnosed as having reached an irreversible end stage
kidney failure and that she now requires
long term chronic outpatient
dialysis until a kidney transplant becomes available.
[26] The Applicant maintains that what
the Hospital is doing is nothing else but unfair discrimination as a
result of which she
continues to face prospects that her human
dignity will endure denigration and this will result in her premature
death.
[27] This statement cannot be the
truth there are numerous South Africans who have been excluded from
renal treatment of the same
nature on the basis of scarcity of
resources. It is unfortunate that the Applicant happens to be
hit by a further exclusion
aspect in the
National Health Act.
The
Constitutional case of
Soobramoney vs Minister of Health
Kwa-Zulu Natal Case No. CCT 32/97
a judgment by Chaskalson P is
to the point. Mr Soobramoney was a South African Citizen whose
condition had reached an irreversible
final stage of chronic renal
failure just like the Applicant in this matter. Mr Soobramoney
had sought regular renal dialysis
from a hospital in Durban in order
to prolong his life. He was informed that unfortunately the
hospital could only provide
dialysis treatment to a limited number of
patients as the renal unit only had 20 dialysis machine. He was
told that because
of the limited facilities the hospital was unable
to provide him with such treatment.
[28] Dr Malcom Davis the Head of the
Department of Nephrology at Helen Joseph Hospital testifies that the
Department of Nephrology
at Helen Joseph has a Chronic shortage of
dialysis slots and is unable to take new patients or patients who are
not transferable
and that the reason why she the Applicant was given
a letter of termination of Temporary Dialysis was not only because of
the Standard
operation procedure for provision of long term renal
placement therapy but also because the Applicant is not eligible for
a kidney
transplant. The hospital in my view is not
discriminating it is applying the existing law that also affects
South African
Citizens.
[29] In his extensive affidavit Dr
Malcom Davis sets out in paragraph 12 what emergency medical
treatment the Applicant received.
He emphasizes at paragraph
12.1.2 that the Applicant was put on temporary haemodialysis, in an
effort to stabilize her condition
and for her family to make proper
arrangements to have her moved to another facility. She and her
brother were also given
a letter to take to the Ethiopian Embassy
with the view to assist her with repatriation to Ethiopia.
[30] The Applicant failed dismally to
reply to have that evidence and could only say that she will in due
course in Part B deal
with the Constitutional repugnance of the
Standard Operating Procedure. This in my view is avoiding the
issue for in my view
Part A is not interim it has definite
characteristics of a final interdict. I shall therefore treat
this as an application
for final relief.
[31] In her heads of argument the
Applicant says that there are four Constitutional rights that are
implicated by the Respondent’s
decision to exclude her from
further treatment namely: yi) Emergency healthcare; (ii) equality;
(iii) human dignity; (iv) right
to life. This is clearly
indicative that the Applicant has based her claim in part on the
terms of Section 27 (3) of the
Constitution which provides that “No
one may be refused emergency medical treatment” and section 11
which stipulates
that “Everyone has the right to life.”
[32] In their opposing affidavit the
respondents have set out certain facts which in the main are either
common cause or have not
been seriously challenged by the Applicant.
As an example at paragraph 12.3 Dr Malcom Davis says that on the 10
th
April 2019 he informed the Applicant and her brother that her kidney
biopsy had demonstrated irreversible kidney failure requiring
long
term chronic dialysis as a bridging treatment for transplantation but
in view of her immigration status she did not qualify
for a
transplant.
[33] The learned Chaskalson P in
Soobramoney (supra) in addressing the Constitutional right to
emergency healthcare said the following
at paragraph 11:
[11] What is apparent from these
provisions is that the obligations imposed on the state by Sections
26 and 27 in regard to access
to housing healthcare, food, water and
social security are dependent upon the resources available for
such purposes and that
the corresponding rights themselves are
limited by reason of the lack of resources. Given this lack of
resources and the
significant demands on them that have already being
referred to an unqualified obligation to meet these needs would not
presently
be capable of being fulfilled. This is the context within
which Section 27(3) must be construed.”
[33] The Applicant was never refused
emergency treatment this is common cause and can never be disputed.
Her condition was
stabilised and steps were taken to assist her with
expedited repatriate to Ethiopia so that when she arrives there she
receives
permanent treatment. She did not refuse the arrangement all
that she now says is that she will not receive treatment in
Ethiopia.
In my view she is speculating the Health Department
of Ethiopia has not said so she now wants to rely on her failed
refugee status
to force Helen Joseph to give her treatment under
circumstances where Helen Joseph hospital is unable to due to lack of
resources.
[34] Combrink J dismissing Mr
Soobramoney’s application in the High Court summarised it as
follows:
“
The case made out by the
Applicant mirrors what at present seems to be a popular conception
that the rights in the Bill of Rights
are absolute and can be
exercised and enjoyed without limitation. This is of cause not so.
The rights are by section 36(1)
limited in terms of the law of
general application to the extent that the limitation is reasonable
and justifiable in an open and
democratic society.”
[35] The hospitals Standard Operation
Procedure which are based on the
National Health Act may
be regarded
as unreasonable but they certainly justifiable. It is in the function
of the court to decide who shall and who shall
not receive the
required medical treatment it is for the medical practitioners and
the Health profession and authorities who make
those decisions.
This court will only interfere if it finds that the decision was
exercised unreasonably. I could not
find any such suggestion,
instead what happened is that the Helen Joseph Doctors went out of
their way to offer assistance up to
where they could and no more.
[36] Dr Medupe Modisane the Deputy
Director General in the Department of Health Gauteng Provincial
speaking on behalf of both the
Provincial and National Health
Departments reiterates that they support the hospitals opposition to
the granting of relief in Part
A and B amongst others on the basis
that the hospital’s Standard Operating Procedure has been
formulated on the basis
of national guidelines which requires that
chronic long term dialysis be made available only to South African
Citizen or permanent
residents including
Section 61(3)
of
National
Health Act 61 of 2003
which section prohibits organ transplants into
persons who are not South Africans or permanent residents of South
Africa.
[37] What is more telling is what Dr
Modisane says at paragraph 7 he says:
“
The Hospital has a waiting list
of people who require chronic dialysis. Accordingly even if the
Applicant were a South African
Citizen on permanent resident and she
persuaded this court that she qualifies to be given long term chronic
dialysis at best for
her she would be entitled to an order that she
be put on that waiting list, not an order that she be granted
dialysis.”
[38] Dr Modisane tells the court that
chronic kidney disease is not uncommon in South Africa it affects
some 14% of the population.
He continuous to tell the court
that providing dialysis is expensive and given the limited financial
resources the available dialysis
facilities in state hospital are
unable to accommodate the large number of people requiring dialysis.
This results in hospitals
denying dialysis to a large number of needy
persons.
[39] In Soobramoney’s case at
paragraph 3 the Constitutional court accepted that the guideline for
chronic dialysis is also
based on the patient being eligible for
renal transplant. A patient who is eligible for a transplant
will be provided with
dialysis until an organ donor is found and a
kidney transplant has been accepted.
[40] The Applicant is not entitled to
the relief she seeks for the reasons set out above and in the
circumstances the hospital Helen
Joseph was and is entitled to refuse
to provide further treatment to the Applicant.
[41] In the result I make the
following order:
i) The application PART A is
dismissed.
ii) I make no order as to costs.
DATED at JOHANNESBURG this
the day
of OCTOBER 2019.
________________________________________
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
DATE OF HEARING: 23 AUGUST 2019
DATEOF DELIVERY: 07 OCTOBER 2019
FOR THE APPLICANT: Adv M Dewrance Sc
INSTRUCTED BY: Lawyers for Human
Rights
Johannesburg Law Clinic
FOR 1
st
& 2
nd
RESPONDENTS: Adv N Makopo
INSTRUCTED BY: Office of the State
Attorney
FOR 3
rd
& 4
th
RESPONDENTS: Adv V Sonic Sc
INSTRUCTED
BY: Office of the State Attorney