The Greek Conference - Corfu, September 2009 Papers

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THE CHANGING FACE OF THE DOCTOR-PATIENT-HOSPITAL RELATIONSHIP IN SOUTH AFRICA:
Does the progressive realisation of patients’ rights ring hollow?

PROFESSOR PIETER CARSTENS *

and

DR ANTON KOK

“The beauty of the moonlight will not enable one to catch the caterpillars”. (Old African proverb)

1 Introduction

The adoption of the Constitution of the Republic of South Africa, 1996, had significant influences on the doctor-patient-hospital relationship in South Africa with specific reference to the rights of patients and health care providers in context of access to health care, the content, quality and equal distribution of health care services, as well as real or perceived “power shifts” in the said relationship (irrespective of public or private health care).[1]

Medical law and the supporting medical science, in view of the Constitutional imperatives, had to adapt accordingly. This paradigm shift also poses significant challenges for the application and understanding of core normative medical ethics[2] such as respect for autonomy, non-maleficence, beneficence, the protection of patient privacy and justice.

In more than 10 years of constitutional jurisprudence as developed by the Constitutional Court of South Africa, many of these challenges have been judicially scrutinised and have been the subject of legislative reform,[3] specifically the progressively realisation of the rights afforded to patients in the Constitution and other instruments such as the National Patients’ Charter.[4]

In this paper, an assessment will be made of these issues with specific reference to case law, legislation and medical ethics. Ultimately the question will be assessed whether there is a progressive realisation of the Constitutional rights of patients, bearing in mind that South Africa is a developing country and that health care is severely exacerbated by HIV/AIDS and Extreme Resistant Tuberculosis. The discussion is divided into two parts. In Part A the normative and ethical framework will be explored with reference to access to health care in terms of the South African Constitution, some practical questions applicable in context of the equitable right to health will be posed and the layered approach to the interpretation of the equitable right to health will be explained. The impact of the Constitution on the progressive realisation on the right to health will be considered with specific reference to the concepts of solidarity and justice in health care and the role of the health care practitioners in the progressive realisation of the right to health. Part B offers an analysis, application, case illustration and reflections on equality in health care with specific reference to the impact of the Promotion of Equality and Prevention of Unfair Discrimination Act.[5]

PART A: THE NORMATIVE/ETHICAL FRAMEWORK

2 Access to health care in terms of the South African Constitution

2 1 Content of section 27

Pivotal to the discussion of equality (or inequality) of access to health care services in South Africa, is a brief understanding of the relevant constitutional construction. In this regard section 27 in the Bill of Rights of the Constitution states the following:

“(1) Everyone has the right to have access to-

(a) health care services, including reproductive health care;

(b) sufficient food and water; and

(c) social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment”.

We briefly set out below what each of the relevant terms in section 27 indicates.

2 1 1 Access

It seems as if the word “access” should be understood to put an obligation on the State to empower private individuals and organisations to provide health care.[6] It could for example be interpreted to encompass a duty on the State to regulate private health care services.[7] We discuss the Promotion of Equality and Prevention of Unfair Discrimination Act[8] below, which could be interpreted as one such regulatory attempt by Parliament.

2 1 2 Reasonable legislative and other measures

Most of the Constitutional Court’s attention in socio-economic rights cases has been spent on fleshing out the obligation on the State to take “reasonable” steps to achieve the realisation of these rights.

Where a court has to decide whether a particular government programme is a reasonable attempt at realising access to health care services, the following criteria must be considered:

• Is the programme comprehensive and does it allocate clear responsibilities and tasks to the different spheres of government?[9]
• Is the programme balanced and flexible?[10]
• Does the programme make provision for crises and for short-, medium and long-term needs?[11] Does the programme plan, budget and monitor the fulfilment of immediate needs?[12]
• Does the programme include a component that addresses the needs of those in desperate situations?[13]
• Is the programme being implemented in a reasonable manner?[14]

2 1 3 Within its available resources

In Grootboom the Constitutional Court held that the effective implementation of State programmes to facilitate access to socio-economic rights “requires at least adequate budgetary support by national government”.[15]

On the other hand, in the same judgment the Court also reasoned that the rate at which the socio-economic rights is realised and the determination of whether the implementation of the rights is reasonable, will depend on the availability of resources.[16]

These dicta are difficult to reconcile. The Constitutional Court has not yet been willing to examine the respective socio-economic allocations in the national budget relative to government’s other commitments. In Soobramoney v Minister of Health, KwaZulu-Natal,[17] for example, the Court did not determine whether the actual amount allocated to the KwaZulu-Natal provincial government’s health budget was adequate; it simply held that there were more patients than could be accommodated by the existing infrastructure and that if the applicant’s remedy was granted then everybody in his position would have to be assisted and the entire system would collapse.[18] (Soobramoney involved an applicant with chronic renal failure who sued the relevant provincial hospital to obtain an order to provide him with ongoing kidney dialysis treatment.) The Court did not consider whether the actual budget allocated to health in the province was adequate, it simply held that the department was doing what could be expected from it, given its existing budget.

2 1 4 Progressive realisation

The Constitutional Court has interpreted this qualifier to indicate that the State must progressively facilitate access to socio-economic rights by examining legal, administrative, operational and financial hurdles and by lowering these over time. The socio-economic entitlements should be made more accessible to a larger number of people and to a wider range of people over time.[19] The Court also held that a deliberate retrogressive measure would have to be very carefully considered before it was implemented and would have to be fully justified.[20]

2 1 5 Emergency medical treatment

The Constitutional Court in Soobramoney held that this right would become operational where a sudden or unexpected non-recurring event occurred which led to a person requiring medical attention. As the applicant in Soobramoney required continuous medical attention and suffered from a chronic condition, he could not rely on this right.

2 1 6 Are private hospitals bound by section 27?

Section 8(2) of the Constitution sets out the test to be applied when deciding if a particular fundamental right binds juristic persons: The nature of the right and the nature of any duty imposed by the right must both point to a conclusion that the right may appropriately bind juristic persons. The qualification “nature of the right” contained in section 8(2) could be interpreted in two ways:

• Only if the nature of the fundamental right under consideration may sensibly bind juristic persons in all conceivable circumstances will such right be held to apply to juristic persons. For example, the right not to be unfairly discriminated against can very sensibly be applied to all natural and juristic persons in all circumstances.[21] Similarly rights such as the right to life, the right to dignity and the right not to be subjected to slavery seem to be of such a nature that they may sensibly be applied in the private sphere in all conceivable circumstances. If this interpretation is followed the right to access to health care clearly does not bind juristic persons: It is entirely inappropriate to expect, for example banks or fast food outlets, to provide access to health care services.
• Where a fundamental right could sensibly be applied to some juristic persons some of the time, then that right should bind juristic persons in those specific circumstances. On this interpretation, private hospitals could very sensibly be expected to provide access to health care services.

The second qualifier contained in section 8(2), “the nature of the duty imposed by the right”, could likewise be interpreted in two ways:

• Only if the duty imposed by the right will in all cases not be too onerous will the right bind juristic persons. On this interpretation the right to access to health care services will not bind juristic persons as the duty imposed on juristic persons such as banks or fast food outlets, who are not in the business of providing health care, is so onerous that the particular institutions would rather opt to provide no services at all.
• In those specific circumstances where the duty imposed by the right is not too onerous, the right will bind juristic persons. On this interpretation, the right to access to health care seems to impose an acceptable burden on private hospitals.

But section 8(2) is only part of the puzzle in deciding if section 27(1)(a) applies horizontally. The wording of the particular right also needs to be considered. On this point it seems unlikely that section 27(1)(a) binds private hospitals directly. Any section in the Bill of Rights must be read in its contextual setting. Section 27(2) contains a clear qualification of the rights set out in section 27(1). Only the State is addressed in section 27(2). If section 27(1) applied to private hospitals it would mean that private hospitals have an unqualified obligation to provide access to health care while the State, who has more resources, has a qualified obligation in terms of section 27(2). This seems illogical and could not have been the intention of the drafters of the Bill of Rights. However, it is also possible to read section 27(2) as an obligation and not as a qualifier – it is only the State that has to progressively keep on realising the right; a particular health service provider need only keep on providing “access” to health care and does not carry the obligation to progressively make health services available to more and more patients. On this interpretation, section 27(1) may very appropriately be applied to private hospitals.

If section 27(1) binds private hospitals, and taking into account that private hospitals would then not be obliged to provide “health care” but only the lesser “access” to health care, we submit that the duty entails the following: Private hospitals must literally keep their doors open and must not put irrational admission requirements in place. Private hospitals will probably be allowed to only admit patients who can afford the requested treatment. We return to this issue below.[22]

2 1 Content of other relevant sections

Section 27, in context of the present discussion, must be read together with the section 9 which states that everyone is equal before the law and has the right to equal protection and benefit of the law.[23]

These rights are not regarded as absolute and may be limited in terms of section 36 of the Constitution which reads as follows:

“(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights”.

The rights contained in the Bill of Rights are therefore subject to limitation and have to be interpreted in terms of section 39 of the Constitution.[24] When a court has to interpret any of the rights contained in the Bill of Rights, regard must be had to international law, and regard may be had to applicable foreign law.[25] This provision is one of the inherent strengths of the South African Constitution as it enables South African courts to draw on the comparable experience and precedent of foreign jurisdictions.

It goes without saying that the right to health/access to health care is a fundamental human right, indispensable for the exercise of so many other rights, and necessary for living a life in dignity. Underpinning the right to health and access to equitable health care[26] are the rights to life,[27] dignity,[28] bodily integrity,[29] and privacy.[30]

2 3 Some practical questions

The South African health system consists of both the public and the private health sectors.[31] There is presently no system of national or social health insurance. Non-governmental and faith-based organisations also get involved in the delivery of health care services and health care issues. The majority of people in South Africa receive health care services within the public health system while services in the private health system are rendered to those who are members of medical schemes or who can afford to pay for such services.[32]

In view of the huge divide between the public and the private health care sectors, and that most South Africans are dependent on the public health sector, a number of practical questions may be posed in context of the equitable right to health. Some of these questions go to the heart of health care delivery systems generally. They relate to the implementation of socio-economic rights in a less than perfect world. They confront issues such as the rationing and equitable distribution of health care services, acceptable levels of quality and standards for health care, interfaces between the public and private sectors on issues of health care delivery and the need for a balancing of the various interests that contribute to the dynamics of the health sector. Some of these practical questions are:

Is there a difference between a right of access to health care services and a right to health care services?

Must the health care services be supplied irrespective of a patient's ability to pay?

If there is a right to health care services from the perspective of the consumer, is there a corresponding obligation to deliver those health care services, and if so, who bears it and to what extent?

If there is a right to health care services, is it restricted to the indigent or do all consumers, including members of medical schemes, have such a right and, if so, against whom?

Is there a specific level of health care service to which a right to health care applies? For example, is the right restricted to health care services at a primary care level or at an emergency care level, or does it extend through all levels of care, including secondary and tertiary levels?

Would the State, and private institutions such as managed care organisations and medical schemes, be able to legitimately restrict access to, or ration, health care services?[33]

Is there a certain standard of health care services implied in the constitutional right to health care services e.g. one which demands that the provider of such services exercises reasonable care in their delivery so as to optimise the efficacy of the services provided?

When a person contracts for certain health care services with a supplier of health care services how does this affect that person's constitutional right of access to health care services?

Can a person contract out of his or her right to life in a health care setting or contract for a lower standard of health care services than is generally regarded as acceptable?[34]

Would consumers in a particular locality be able to insist that the government constructs and equips a clinic or hospital in the area to serve their health care needs on the basis of a constitutional right of access to health care services?

Would consumers in a particular locality be able to prevent the closure of a state owned hospital or clinic in their area on the basis that such closure would constitute a denial of their right of access to health care services?

Can an individual insist on receiving life prolonging medical treatment when such treatment does not improve the quality of life of the patient and holds no hope of a cure but prolongs his or her life such as it is?

Does a right to health care services imply a right to funding of those services by the state or by a medical scheme?

Is it equitable to institute the implementation of a particular health intervention for select groups of people with a view to increasing coverage to the remainder of the population over a period of time?[35]

What are the rights of providers of health care services in the light of the existence of a constitutional right to such services on the part of consumers?

It should be clear in view of the foregoing questions that the Constitution, as a foundational source base, would have a profound influence on public and private health care delivery. This influence will undoubtedly also impact on the understanding and application of medical law in South Africa.

2 4 A layered approach to the interpretation of the right to access to health

A layered approach is indicated in the assessment and interpretation of the right to access to health. This right must be canvassed on an integrative level. An integrative level is indicative of a legal framework in which an attempt is made to integrate or harmonise the understanding and application of the right to health with reference to multiple normative systems:

The applicable Constitutional provisions, the applicable principles of the common law, relevant legislation (often articulated in terms of the Constitution, such as the Equality Act); case law; and medical ethics.[36] On any given topic or issue in medical law/ health care law, in the new paradigm, this multi-layered approach "kicks in", as it were, in a quest to find the applicable rules or values which will eventually offer the best solution to the problem.[37]

2 5 The impact of the Constitution on the progressive realisation on the right to health: The State’s obligation to provide health care

Pivotal to an understanding of the right to health and the equal access thereto and the equitable distribution of health care services, is an understanding of the impact of the Constitution that places an obligation on the State to progressively realise these rights. An assessment of the impact of the Constitution ultimately brings one to this question - whether at this point in time, in the context of the right to equal access to health care, it is appropriate to talk about the failing constitutional state in South Africa. Are we as patients in South Africa now in the “age of disillusionment”? Is the reality of the health landscape in South Africa indicative of a symbolic constitutional state, while the crucial centre is imploding in the formal sense of the word: the absence of accountability,[38] lack of respect for the rule of law, the collapse of essential services (eg the public health care system), a poor social service system, denial about HIV/AIDS etc?

A consideration of applicable constitutional jurisprudence paints a different picture, at least from a normative perspective.[39] Consider the following judgments:

· In S v Acheson[40] the late former Chief Justice Mahomed explained constitutional supremacy as follows: “The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed. It is a ‘mirror reflecting that national soul’, the identification of the ideals and aspirations of a nation; the articulation of values bonding its people and disciplining its government”.[41]

· In S v Makwanyane[42] he also referred to the new constitutional dispensation: “The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past that which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution”.[43]

It has been observed that the formulation of section 27 provides little indication of the nature or scope of the entitlement which the right to access to health care services confers, nor of the extent to which resource limitations and progressive realisation could permissibly limit the state’s duty to ensure access. Some guidance on the State’s obligations is provided by the constitutional mandate that the State must respect, protect, promote and fulfil the rights listed in the Constitution, a typology drawn from international law which imposes a range of positive and negative duties under each right. The scope and content of the right to access to health care remain to be sculpted from these relatively amorphous constitutional provisions through an evolving Constitutional Court jurisprudence.[44]

2 6 Solidarity and justice in health care

Solidarity, as a condition of equal access to health care, refers to the notion of social justice. Social justice implies a redistribution of goods whereas differences in treatment require justification. Rawls defended inequalities in (medical) treatment on the difference principle,[45] according to which inequalities are justified only if they are designed to bring, and actually do bring the greatest possible benefit to others who are less well off.[46] Solidarity and justice in health care law explore the underlying normative values of health care system not only from a local perspective, but from a global perspective.[47] Notably the South African Constitutional Court’s jurisprudence provides a path-breaking illustration of the social justice potential of an enforceable right to health (albeit mainly in symbolic terms). The South African experience suggests that enforcing health care rights may in fact contribute to greater degrees of collective solidarity and justice. It points to individual civil and social rights within a communitarian framework drawing from the traditional African notion of “ubuntu”, which denotes collective solidarity, humanness and mutual responsibilities to recognise respect, dignity and value of all members of society.[48]

2 7 The role of the health care practitioners in the progressive realisation of the right to health

It has been stated that physicians confront the harms inflicted on their patients from the infringement of these patients’ human rights.[49] They see patients who are coping not only with illness and disease, but with deprivation, discrimination and violence that undermine their health. In poor countries, health care practitioners agonise over their inability to provide the quality care they are trained to offer because facilities in which they work may lack medical supplies or the proper infrastructure.

In wealthy countries where patients are covered by medical insurance, health care practitioners are often frustrated because medical insurance companies denies reimbursement or do not offer sufficient cover. In all these settings, health care practitioners are aware, or should be aware, of how the ideals of the profession to treat the sick cannot be realised, no matter how personally committed they are to their patients and the community they serve. Despite these experiences and professional values that seem to be in harmony with the realisation of the right to the highest attainable standard of health, health care practitioners have not generally been at the forefront on the development, protection and advancement of human rights in context of the right to health.[50]

The question may be posed: What can health care professionals do to advance the progressive realisation of the right to health (inclusive of equitable access to health and equitable distribution of health)? There is much to be gleaned from the British Medical Association’s “toolkit” on human rights and clinical medicine.[51] This “toolkit” includes the following:[52]

· Being honest, polite and respectful to all patients without discrimination;

· Ensuring professional skills are maintained to the highest possible level;

· Respecting the autonomy and dignity of patients and their right to self-determination;

· Providing up-to-date and relevant information without discrimination to support patients’ decision-making;

· Respecting patient confidentiality; and

· Treating patients with the highest ethical standards.[53]

It goes without saying that the effective implementation of this “toolkit” for the advancement of the right to health by health care practitioners, is dependent on the necessary “building block for a ‘healthy’ health system”. In this regard the World Health Organisation (WHO) identifies 6 essential “building blocks” which together make up a health system:[54]

1. Health services (medical and public health);

2. Health workforce;

3. Health information system;

4. Medical products, vaccines and technologies;

5. Health financing; and

6. Leadership, governance, stewardship.

Despite the aforementioned national and international normative framework for health care practitioners, the doctor-patient-hospital relationship in South Africa (as in most, if not all developing countries) is severely compromised in terms of lack of infrastructure, resources, divisions between public and private health care, specific health challenges/diseases/infectious strains (such as HIV/AIDS,[55] SARS, H1N1, drug-resistant TB[56] etc), and ultimately a lack of political will and leadership, despite judicial declarations that the State is obliged to progressively realise the heath rights of its citizens.[57]

It is also evident that the courts, in some instances, for what can only be termed as “legal protectionism slanted in favour of the medical profession”, have failed patients in the public health sector.[58] These constitutional violations by the State[59] certainly impact on the very nature of the doctor-patient-hospital relationship, often leading to blunted professional apathy on the part of health care professionals who “are expected to make bricks without straw” to the detriment of patients’ right to health (inclusive of access, quality and emergency health care).

The progressive realisation of patients’ rights to health does indeed, more often than not, ring hollow. This will also be borne out by the discussion on equality and applicable case law that follows below.

PART B: Linking access to health care services to the prohibition of unfair discrimination: The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

3 1 Introduction

Since the first democratic elections in 1994, the South African government has attempted to counter a legacy of grossly unequal allocation of resources, wealth and power.[60] One of the latest in a string of legislative attempts to undo the effect of centuries of race-based oppression and marginalisation (including, obviously, Apartheid) was the Equality Act. As an example of anti-discrimination legislation, the Equality Act is ambitious in scope. It outlaws unfair discrimination[61] in almost every sphere of society:[62] labour and employment, education, health care services and benefits, housing, accommodation, land and property, insurance services, pensions, partnerships, professions and professional bodies, provision of goods, services and facilities, and clubs, associations and sport.[63]

The Equality Act explicitly addresses health care services and benefits. It contains the following rather idiosyncratic list of practices that Parliament thought should specifically be addressed:[64]

(a) Subjecting persons to medical experiments without their informed consent.[65]

(b) Unfairly denying or refusing any person access to health care facilities or failing to make health care facilities accessible to any person.

(c) Refusing to provide emergency medical treatment to persons of particular groups identified by one or more of the prohibited grounds.[66]

(d) Refusing to provide reasonable health services to the elderly.

Over and above the situations that have been described in this list, the Act contains a general prohibition against unfair discrimination – section 6 of the Act provides that “neither the State nor any person may unfairly discriminate against any person”. We set out below who would be bound by this general prohibition and how to establish if a hospital had unfairly discriminated against a potential patient.

3 2 Explicit horizontal application

The Equality Act explicitly applies to the State and all “persons”.[67] “Person” is defined in the Act as including any juristic person, non-juristic entity, group or category of persons.[68] This definition would thus include all State and private hospitals, clinics and other health care providers.

3 3 “Discrimination”

The Equality Act defines “discrimination” as follows:[69]

Any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly-

(a) imposes burdens, obligations or disadvantage on; or

(b) withholds benefits, opportunities or advantages from,

any person on one or more of the prohibited grounds;

In turn, “prohibited grounds” are defined as follows:[70]

(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or

(b) any other ground where discrimination based on that other ground-

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).

It should be clear from the above that should a person be turned away from a hospital based on any of the prohibited grounds, that such a refusal to treat someone would amount to discrimination – the refusal to treat would amount to the “withholding of a benefit”, as set out in the definition.

3 4 “Unfair” discrimination

In South African legal parlance, the term “discrimination” denotes little more than a “differentiation” or “distinction” made on a prohibited ground, and discrimination as such does not constitute a cause of action. It is only when the discrimination was “unfair” that a court would take notice and remedy the situation. Under this heading, we discuss how a court would determine whether discrimination was “unfair”.

Section 14 of the Act sets out the “test” for unfairness:

(1) It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.

(2) In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account:

(a) The context;

(b) the factors referred to in subsection (3);

(c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.

(3) The factors referred to in subsection (2) (b) include the following:

(a) Whether the discrimination impairs or is likely to impair human dignity;

(b) the impact or likely impact of the discrimination on the complainant;

(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;

(d) the nature and extent of the discrimination;

(e) whether the discrimination is systemic in nature;

(f) whether the discrimination has a legitimate purpose;

(g) whether and to what extent the discrimination achieves its purpose;

(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;

(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to:

(i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or

(ii) accommodate diversity.

Section 14(1) deals with what is usually referred to as “affirmative action” and need not detain us in this paper as it is unlikely to play a role in the doctor-patient-hospital relationship.

Section 14(2)(a) makes it clear that each case will be a contextual enquiry. [71] This “context” includes the existing South African social, economic and political circumstances when the specific case is heard.[72] This approach is also in accordance with Constitutional Court judgments.[73]

Section 14(2)(c) contains a number of factors that will be of assistance to a respondent who wishes to disprove that he unfairly discriminated against the applicant: if the discrimination was “reasonable” and “justifiable”, followed “objectively determinable criteria” and if the discrimination was “intrinsic to the activity”, such discrimination may be found to be fair. This subsection is the result of a very clumsy attempt by the drafters of the Act to address the concerns of mainly the insurance industry and to distinguish between “discrimination” and “(mere) economic differentiation”.

Section 14(2)(b) refers the reader to section 14(3) which in turn lists a number of criteria, most of which has their origin in Harksen v Lane NO:[74]

Section 14(3)(a): If the discrimination impairs or is likely to impair dignity such discrimination will most likely be held to be unfair.[75]

Section 14(3)(b): The more severe the impact of the discrimination on the applicant, the more likely that the discrimination will be held to be unfair.[76]

Section 14(3)(c): A powerful or privileged applicant will have to make out a very strong case that he is the victim of unfair discrimination. Section 9 of the Constitution does not protect “pockets of privilege”.[77] The more disadvantaged the particular group that the applicant belongs to, the more likely that the discrimination will be held to be unfair.[78]

Section 14(3)(d): If the discrimination is of a minor nature or of small extent such discrimination will more likely be found to be fair. Recurring discrimination is more likely to be unfair.[79]

Section 14(3)(e): Systemic discrimination will more likely be unfair discrimination than non-systemic discrimination.

Section 14(3)(f): If the discrimination has a legitimate goal, it will more likely be fair.

Section 14(3)(g): If no rational link exists between the discrimination and its (legitimate) purpose, the discrimination will more likely be unfair. If the discrimination did not achieve the alleged purpose, the discrimination is more likely to be unfair.

Section 14(3)(h): This section has its origin in section 36(1)(e) of the Constitution. If the respondent could have achieved its (legitimate) purpose in a less restrictive way, the discrimination is more likely to be found unfair. In theory it is almost always possible to think of less serious ways of achieving the same purpose. This factor should therefore not be used to mark almost all instances of discrimination as unfair. A value judgment must be made taking into account all relevant factors. If an entirely inappropriate method had been used to achieve a (legitimate) purpose, such discrimination is more likely to be unfair.

Section 14(3)(i) rewards discriminating respondents who take steps to alleviate the damage caused by the discrimination. When a respondent takes such steps, the discrimination is less likely to be found to be unfair. If the respondent did nothing to minimise the disadvantage, it is more likely that the discrimination was unfair.

3 5 Does unequal access to health care services amount to unfair discrimination?

Section 7(d) of the Equality Act provides that “subject to section 6, no person may unfairly discriminate against any person on the ground of race, including … the provision or continued provision of inferior services to any racial group, compared to those of another racial group”.

It is at least arguable that the majority of poor (potential) hospital patients in South Africa would be black. Although section 7(d) does not refer to poverty as such, if it could be shown that in a particular area the closest State hospital offers inferior services compared to the closest private hospital, and if it could be shown that the State hospital primarily services (poor) black patients while the private hospital services mainly (more privileged) white patients, such a situation would be in conflict with section 7(d).

It should be noted however that section 7(d) is expressly made subject to the general prohibition against unfair discrimination in section 6. The general test of unfairness would therefore still apply.

But even if a very courageous court finds that the unequal provision of services in the two hospitals amount to unfair discrimination, what would the likely effect be? If the court orders the private hospital to admit patients who are unable to pay, the long-term effect of such an order could be that the private hospital eventually closes its doors because of an inability to operate at a profit, leaving everyone worse off. A court could opt for a declaratory order that the State hospital should over time improve its service delivery so that it eventually achieves the same or comparable level of service as the private hospital, and could at the same time order the State hospital to report to the court on a periodic basis on its attempts to improve its service delivery.

Such an order would leave the private hospital off the hook. Perhaps the solution lies in section 14(3)(i) of the Act – order the State and private hospital to negotiate and facilitate a skills transfer process between the two hospitals. All of these options amount to South African courts accepting the far-reaching and heavy responsibility for giving life to the right to access to health care services. If courts baulk at this possibility, they would hold that the current unequal distribution of resources between State and private hospitals amount to fair discrimination, and allow themselves the freedom not to have to devise a remedy to solve this dilemma.

S v Tembani[80]may be read as an attempt by the Supreme Court of Appeal to deal with the unequal distribution of resources within the private and public health sectors in South Africa in pragmatic but ultimately conservative manner. The judgment does not deal directly with the issue under discussion, but the judgment’s subtext is the big divide between public and private health care in South Africa with reference to medical infrastructure, resources, and competent medical staff.

Tembani shot his girlfriend, Thandi Lamani, at least twice; one bullet entering her chest between the fifth and sixth ribs and penetrating her right lung, diaphragm and abdomen en perforating her duodenum, and the other bullet her calf, fracturing her tibia and fibula. The evidence established that Tembani intended to kill Thandi. Thandi was admitted to a State hospital where she died two weeks later. She was insufficiently attended while in hospital. Although she vomited and complained of abdominal pains, only five days after admission was a laparotomy performed and the gunshot properly tracked and sutured. The trial court and appeal court accepted that Thandi had received negligent treatment while in hospital. Tembani argued that this negligent treatment amounted to a new intervening cause that severed the causal link between the gun shots and Thandi’s death.

The appeal record showed the following: The particular State hospital, partly based on a limited budget and lack of resources, was understaffed, the doctor-patient and nurse-patient ratios were seriously inadequate, medical record-keeping was sub-standard and discipline was lacking in enforcing proper record keeping, and the standard of nursing care was poor.

In paragraph 25 of the judgment, the Supreme Court of Appeal holds as follows:

The deliberate infliction of an intrinsically dangerous wound, from which the victim is likely to die without medical intervention, must … generally lead to liability for an ensuing death, whether or not the wound is readily treatable, and even if the medical treatment later given is substandard or negligent, unless the victim so recovers that at the time of the negligent treatment the original injury no longer poses a danger to life.

The Court provides two reasons for this finding.

1. An accused who with intent inflicts an intrinsically fatal wound realises and accepts that death may ensue. When others fail to intervene to save the fatally injured person, the accused’s moral culpability does not diminish and neither does his legal culpability lessen.[81]

2. Medical resources in South Africa are sparse and palpably maldistributed. In these circumstances it would be wrong to impose legal liability on the assumption that efficient and reliable medical attention will be available to all victims. It is an unfortunate fact of life in South Africa that for the majority of South Africans, proper medical care is not available.[82]

It should be noted that this was a criminal case where the accused attempted to use the victim’s negligent treatment as a defence to a charge of murder. The Supreme Court of Appeal did not excuse the negligent treatment; had Thandi’s dependants issued summons against the hospital it would undoubtedly have been found liable based on Thandi’s negligent treatment.

The downside to the judgment is that it implicitly accepts the status quo of unequal medical service delivery in South Africa, and also implicitly accepts that Thandi would not have been granted access to a private hospital. The unpalatable fact is that had Thandi been accepted for treatment at a private hospital, she would probably have survived the gunshots (and Tembani would not have been found guilty of murder).

3 6 Does the refusal to admit patients due to inability to pay amount to unfair discrimination?

May a South African private hospital be ordered to admit a patient who is unable to afford the medical treatment in that hospital, on the basis that non-admittance would amount to unfair discrimination? Would it have been open to Soobramoney to sue a private hospital to provide dialysis treatment, on the basis of his inability to pay and the inability of the State to provide the treatment?

It is easy enough to argue that the non-admittance amounts to discrimination – the benefit of treatment in a world-class, First World hospital is denied to a patient based on the prohibited ground of race (if it can be shown that it is primarily (poor) black patients who are turned away from private hospitals), or perhaps more plausibly, on the ground of socio-economic status.

The prohibited ground of socio-economic status is not listed explicitly in the definition of prohibited grounds, but may be inferred from the requirements listed in paragraph (b) of the definition – (extreme) poverty is demeaning, and poverty is caused by and leads to systemic discrimination. Section 34 of the Act in any event lists socio-economic status as a potential prohibited ground.[83]

Whether a court would be persuaded that this kind of discrimination is also “unfair”, is a much more difficult question. At this stage too few equality court judgments have been reported to even attempt a guess at how progressive the equality courts will be in their interpretation of socio-economic discrimination cases. To our knowledge, not a single equality court case has been brought on the basis of socio-economic status. Courts will probably decide that market-generated inequalities are instances of fair discrimination, which would destroy the transformative potential of the inclusion of this ground.[84]

4 Conclusion

The progressive realisation of patients’ rights in South Africa, does indeed ring hollow, in spite of the right to access to health care and equality in the Bill of Rights. Equitable access to health and equitable distribution of health care services, specifically in the public health sector, remain but a pipe dream, even in the face of groundbreaking Constitutional jurisprudence instructing the State and state institutions to “rise to the occasion” and meet their obligations in terms of the Constitution. This failing state of a faltering democracy, brought about by lack of political leadership, HIV/AIDS denialism for more than a decade, institutionalised incompetence, as well as lack of resources and infrastructure in public health care fly directly and glaringly in the face of an excellent and well-funded private health care system for those who can afford to pay. It is ironically this glaring divide between public and private health which underscores the lack of solidarity, justice and equality for patients in South Africa. This divide will pose significant challenges to the establishment of a proposed National Health System, as it is submitted that the unequal access to health care amounts to unfair discrimination, which is untenable in a Constitutional democracy.

It is imperative that health care practitioners assert their professional and ethical duties to advance the progressive realisation of the right to health and to recommit themselves to the defensible standards of clinical medicine and to ‘”reclaim their professional turf”. In the end, nothing could be more important to promoting greater enjoyment of the right to health than strengthening the national health system. A nation’s health system is its life-force and a marker of the priority it gives to its most vulnerable and marginalised members of a society. A country’s health is fundamental not only to its wellness, but to its social cohesion, its prosperity and perhaps even to its political stability. The strength, therefore, of every country’s health system and within every country, its local and community-based capacities, is of paramount importance.[85]

* Prof Pieter Carstens BLC LLB LLD
Professor of Medical and Criminal Law, University of Pretoria, South Africa

Dr Anton Kok BComm LLB LLM LLD
Senior Lecturer of Human Rights Law, University of Pretoria, South Africa

Footnotes:

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Copyright 2009. Greek Legal and Medical Conference