What the laws say about access to health care by foreign nationals is fairly clear, but Gauteng has enacted its own guidelines and policies, which show “a shocking lack of clarity”, according to health rights NGO Section 27 in recently filed court papers.
A recent social media video of Limpopo health MEC Phophi Ramathuba berating a Zimbabwean patient at a hospital in Bela Bela for “ruining my health system” has focused attention on the effect of migration on SA’s health-care system. And what the law says about the provision of health care for migrants appears to be a question even hospitals have different answers for.
Section 27 of the constitution states that “everyone” has the right of access to healthcare services. The section does not draw a distinction between citizens and noncitizens as other sections do — in regard to the right to vote, for instance.
“Access to” does not necessarily mean these services must be provided free. But the constitution does make it clear that no-one can be turned away from hospitals for emergency medical care. They may have to pay later, but if it is an emergency at the time of entry they must be treated.
Then there is the National Health Act, which provides for free primary health care at government facilities for everyone who does not have medical aid and free healthcare services at government facilities for all pregnant and breastfeeding women and children under six.
The act does not differentiate between citizens and noncitizens. It also provides for free terminations of pregnancies at government facilities up to 12 weeks of pregnancy. Under the Refugees Act, refugees have the right to the same basic health care as citizens.
The act says the health minister, after consulting the minister of finance, may “prescribe conditions” for categories of people to be eligible for these free services. So far there have been no express “conditions” published by the minister setting out categories of people who may be eligible for these free services. Any conditions would have to pass constitutional muster — they would have to be rational in law, not be unfairly discriminatory, and if they were, such discrimination would have to be justifiable under the constitution.
This means everyone is supposed to get free primary health care, though there may yet be a debate in court about whether this means at both hospitals and clinics or only at clinics. All pregnant and breastfeeding women and children under six are supposed to get free health services.
Then there is a national uniform patient fee schedule — a directive circulated by the national health department and applied by provincial government hospitals. The schedule includes a means test that determines how much patients must pay for medical services according to their income, and sets out how much hospitals should charge for specific procedures.
According to the schedule, Southern African Development Community (Sadc) citizens, documented or not, are to be treated alike with South Africans. Where the services are not free they must, like South Africans, do a means test and pay according to what they can afford. The provision for Sadc citizens is in line with a Sadc health protocol, says Sasha Stevenson of Section 27. Noncitizens from further abroad who are not refugees must pay the full price, she says.
Asked if in Limpopo Sadc citizens must be means-tested in the same way as South Africans, Limpopo health spokesperson Neil Shikwambana said: “According to the policy, patients need to pay based on the means test.”
But after describing how the means test works, he said: “If we have to apply these principles on a means test basis on individuals who are in the country illegally without relevant documentation, how do you conduct a means test? How do you follow up for collection in a situation where they have no money and they have to sign debt acknowledgment but have no documents?”
In Gauteng regulations that came into force in December 2021 appear to set up a payment regime that mirrors the national fee schedule in so far as Sadc citizens go.
However, a policy that came into effect in 2020 creates a category of “full-paying patients”, which includes “non-South African citizens”. This seems to contradict the regulations and requires all non-South African citizens to pay full fees. Asked for clarity, Gauteng health spokesperson Motalatale Modiba referred the news crew to the national department.
The Gauteng policy and regulation are also unclear on whether fees are to be charged for pregnant women and children under six. It is this focused issue that Section 27 has gone to court over, saying this has meant inconsistent application by hospitals.
The NGO wants the Gauteng government to clarify to its hospitals that hospitals are free for pregnant women and children under six “irrespective of their nationality and documentation status”. The government is yet to file its answering court papers.
– Sunday Times