The rights of migrants to healthcare are not absolute, writes Prof Narnia Bohle-Muller, in Daily Maverick. There are exceptions and international human rights law allows states to treat citizens and non-citizens differently if the difference in treatment serves a legitimate state objective.
Professor Narnia Bohle-Muller, executive director of democracy, governance and service delivery at the Human Sciences Research Council and adjunct professor of law at the University of Fort Hare writes in the Daily Maverick:
An article by Tlamelo Mothudi published on 19 September 2019 in Daily Maverick claims that the National Health Insurance Bill 11 of 2019 will “leave many without cover” and questions the constitutionality of limiting the right of access to healthcare services of asylum seekers and undocumented immigrants. These questions and concerns have been the subject of extensive consultations since the publication of the NHI White Paper in 2015.
In its engagements with Parliament, the Department of Health confirmed it had sought legal opinions on these matters from constitutional experts and the office of the State Law Adviser.
The concerns raised are no doubt complex and sensitive, especially considering the socio-economic frailties in our society and communities. Without resorting to the default, and somewhat lazy, position of criticising the government for everything, one assumes in good faith that such important policy decisions were not taken lightly as public engagements interrogated the constitutionality, practicality and implementation concerns raised by different stakeholders – who do not all have the same opinion on the matter.
The Bill of Rights enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. Section 7(2) further provides that the state must “respect, protect, promote and fulfil” the rights in chapter 2. In addition, the Bill of Rights includes justiciable socio-economic rights, one of which is the right of access to healthcare services. In terms of section 27(1)(a) everyone has the right to access to healthcare services, including reproductive healthcare. Section 27(2) states the state must take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of this right.
The rights contained in chapter 2 of the Constitution are not all absolute and some may be limited by way of specific limitations embedded within the rights themselves. This is the case with socio-economic rights where “progressive realisation” within “available resources” limit these rights.
Another example is the right to freedom of expression (section 16), where the Equality Court has once again reminded us that this right is not limitless and cannot be used to protect incitement to violence or hate speech, among other things. In addition, section 36, known as the limitation clause, provides that “limitations must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
Thus, the wording of the Constitution indicates that the matter of creating a better life for all is not something that can be achieved in a vacuum.
She writes the Constitutional Court had to face this stark reality in one of its earliest cases. In Soobramoney v Minister of Health (KwaZulu-Natal)  ZACC 17, the Constitutional Court held that Mr Soobramoney’s right to free dialysis at a public hospital was not absolute because if treatment had to be provided to Soobramoney it would have to be provided to all others in a similar position and the resources available to Addington Hospital could not accommodate the demand.
The court held that the responsibility for making the difficult decisions of fixing the health budget and deciding upon the priorities that needed to be met lay with political organs and the medical authorities and added that the court would be slow to interfere with such decisions if they were rational and taken in good faith.
Soobramoney’s situation did not amount to emergency medical treatment.
Bohle-Muller writes that retired judge Albie Sachs often relates the story about how painful this judgment was, but also reiterates that practicalities play a role in decision-making, especially in a country recovering from an oppressive history that deprived the majority of South Africans of their rights. The tremendous sadness and discomfort that followed Soobramoney’s death shortly after the judgment cannot be underestimated; the court was faced with balancing the rights of an individual with the rights of others who were needful of this treatment. It is sincerely hoped that the courts will never have to make this kind of choice again.
The Constitution has distilled a number of principles related to the realisation of socio-economic rights, one of which is that the court will not second-guess whether the specific measure is the most appropriate or the most favourable, as long as it is reasonable and rational. The approach must thus be progressive and not retrogressive.
Bohle-Muller writes that this is in line with the Limburg Principles on the implementation of the UN Covenant on Economic, Social and Cultural Rights of 1986 that provides that state parties are obliged to move expeditiously towards the realisation of rights outlined in the covenant. It furthermore requires the “effective use” of available resources.
NHI principles expressed within the Bill provide a measure to test whether this legislation is rational and reasonable; this human rights-based approach seeks to ensure that all health policies, strategies and programmes are designed with the objective of progressively improving the enjoyment of all people within South Africa of the right to health and free healthcare services.
She writes the above context should be considered when determining how to approach the rights of immigrants to healthcare services in South Africa.
The National Health Act is vague on access to free healthcare services for non-citizens. The Immigration Act is silent on the matter, and the Refugees Act states that refugees in South Africa have the same right of access to healthcare services as South African citizens. However, there is no certainty in South African law on the rights of asylum seekers and undocumented migrants to access socio-economic rights. This is also the case in international law.
Bohle-Muller that while core human rights standards apply equally to migrants and non-migrants, regardless of their legal status in a country, and prohibit discrimination on the basis of national origin, there are exceptions to these rules. International human rights law does allow states to treat citizens and non-citizens differently if the difference in treatment serves a legitimate state objective and is proportional to its achievement, as articulated by the Committee on Elimination of Racial Discrimination, General Recommendation No. 30: Discrimination against non-citizens (2004).
Bohle-Muller writes that in the realm of economic and social rights, most states have been less willing to treat migrants and non-migrants equally, and some instruments – such as the European Social Charter – allow governments to grant certain public benefits to lawfully present migrants only.
She says the NHI Bill is not oblivious to these concerns hence the inclusion of the following provision on coverage to make provision for “… certain categories or individual foreigners to be determined by the Minister of Home Affairs, after consultation with the Minister of Health and the Minister of Finance, by notice in the Gazette…”. This allows for an expansion of the right where it is deemed necessary and fair to do so.
The NHI Bill further provides that asylum seekers and foreigners visiting South Africa, including undocumented immigrants, will have free access to emergency medical services and care for notifiable conditions of public health concern. Visitors to South Africa are expected to have travel insurance that includes medical treatment.
All children regardless of origin are entitled to healthcare services. Emergency medical services include services provided by any entity dedicated, staffed and equipped to offer pre-hospital acute medical treatment and transport of the ill or injured, while notifiable conditions of public health concerns include diseases such as tuberculosis, HIV/Aids and cholera. Other healthcare services would be provided based on a means test and would not be free. This is not a total restriction of access.
Bohle-Muller writes that this approach takes into consideration South Africa’s macroeconomic context, balancing competing health needs, resource allocation constraints and the need for prioritisation of South African citizens as we progress towards full universal health coverage. This is also in line with international experiences in Norway, the UK and Thailand, all of which have similar approaches to the one outlined in the NHI Bill.
The limitation of the rights of asylum seekers and undocumented persons to free health care services is not retrogressive, and as such would pass constitutional muster. Waiting for the “perfect conditions” for the implementation of NHI would result in no progress, leading to the state failing to comply with the constitutional obligation to “progressively realise” the right of access to healthcare services.
Bohle-Muller says what should be a priority is the progression to a situation that would lead to universal care that is free so that we may in future attain the promises of the Constitution, for all.
[link url="https://www.dailymaverick.co.za/article/2019-09-24-nhi-access-for-the-asylum-seekers-and-undocumented-migrants-is-a-complex-issue/"]Full article onDaily Maverick[/link]