The high court has ruled that blocking foreigners from healthcare is unconstitutional. Photo: Bhekisisa
One of the members of vigilante group Operation Dudula recently spat his message along the busy corridor that leads into Chris Hani Baragwanath Hospital in Soweto: “No foreigners! No asylum! No passport! Only South Africans are allowed here! Identify yourself or you are not going in!”
The angry video, posted on social media and viewed over half a million times, is Operation Dudula’s version of proudly South African.
On Tuesday, High Court Judge Leicester Adams handed down an interdict meant to put an end to it. Included in the ruling: no xenophobic-laced hate speech, no intimidation or assault of foreign nationals and no blocking their entry to schools, clinics or hospitals.
Denying foreigners access to healthcare facilities, the judge found, clearly violated section 27(1)(a) of the Constitution, the right to healthcare, which applies to everyone — not just citizens. It’s also a violation of South Africa’s obligations under international law, wrote Adams, citing multiple human rights treaties and the Durban Declaration, which calls for equal access to healthcare, including primary healthcare (services provided at clinics) and HIV treatment that is free from racism and xenophobia.
Groups like Operation Dudula flood the zone with fear, confusion and misinformation around healthcare access for foreign nationals. But that space has been easy to muddy, something only exacerbated by provisions in the National Health Insurance Act.
Written as is, the Act would deny undocumented migrants and asylum seekers (someone who has applied for refugee status) access to HIV services, a major departure from current policy, and something that would only cause the epidemic to grow. That’s because antiretroviral drugs (ARVs) don’t just keep people with HIV healthy; the medicine stops HIV from replicating in someone’s body, and so brings down the amount of HIV to such low levels that they have too little virus left in their system to infect others. Denying infected people treatment, therefore makes it easier for the virus to spread.
That’s just one of the many reasons why there are currently eight court challenges — Solidarity, Hospital Association of South Africa, Health Funders Association, Board of Healthcare Funders, Western Cape government, South African Private Practitioners Forum, South African Medical Association, Sakeliga — to the Act.
Although Health Minister Aaron Motsoaledi told Bhekisisa’s TV programme, Health Beat, in September that he would consider starting the process to change the part of the Act that denies undocumented migrants and asylum seekers access to HIV treatment, that has not yet happened.
To understand what the law says about healthcare access for foreigners now, what the NHI Act would change and why it matters for public health, we spoke with Sasha Stevenson, executive director of SECTION27, the public interest law group which served as a friend of the court in the Operation Dudula case and represents the Treatment Action Campaign as amicus curiae in one of the challenges to the Act.
What follows is an edited version of Mia Malan’s conversation with Stevenson, excerpted from a recent episode of Health Beat.
Mia Malan (MM): According to current law, which health services do foreigners have access to and which ones can’t they access?
Sasha Stevenson (SS): The National Health Act says that everyone is entitled to primary healthcare services, which are generally services at clinics. Everyone who is not on medical aid is entitled to receive those services for free, regardless of whether they’re South African or not. Pregnant and breastfeeding women, and children under the age of six, unless they are on medical aid, are entitled to free healthcare services at both clinics and at hospitals.
When it comes to hospital services, refugees, asylum seekers and undocumented people from SADC [the Southern African Development Community, which includes 16 member countries in the region] states are entitled to [an income-based evaluation] to determine the extent of subsidisation from hospitals.
When it comes to services for HIV, there are various directives over the last many years that make it clear we shouldn’t be distinguishing between people when it comes to HIV services.
MM: But the future of healthcare under the National Health Insurance Act says that people who are undocumented and asylum seekers won’t be able to access HIV services. Why is that bad for public health?
SS: South Africa has the biggest ARV programme in the world, both because it’s been fought for by activists and because we need it. We have such a high burden of HIV that if we start distinguishing who we are treating, our HIV epidemic is going to grow.
MM: In the Act, it says that only “notifiable diseases” qualify for free treatment when it comes to certain groups of people. What is a notifiable disease, and why isn’t HIV one of those?
SS: A notifiable condition, or condition of public health concern, is the kind of condition that needs to be reported up the ranks when it is seen in a health facility because it has such significant public health consequences as it can lead to an outbreak. So, things like tuberculosis, cholera, typhoid and yellow fever.
Part of the reason HIV has not been determined as a notifiable condition is because of the risk of stigma. But it’s also because our surveillance systems around HIV are fairly advanced. We have really good processes for the testing and the treatment of people living with HIV, and ensuring that if someone drops off treatment, they’re brought back into treatment.
MM: What is SECTION27 doing to challenge the NHI Act as it stands now?
SS: Over the last 10 years, SECTION27 and our partners have made a slew of submissions on various iterations of the NHI Bill, from the white paper to the two versions of the Bill and the regulations that have recently been published.
Again and again, we’ve raised concerns about elements of the Bill, and now the Act, that are unconstitutional and that will risk further disadvantages for the vast majority of people in South Africa who use the public healthcare system.
We have been instructed by the Treatment Action Campaign to intervene as an amicus curiae, or a friend of the court, in one of the constitutional challenges to the Act, raising primarily three concerns.
The first is the lack of transparency and public participation in decisions related to NHI. While the Act turns the health system into even more of a procurement system than it already is, there are no requirements that the public should know who is bidding for contracts or what they’re being paid, or who’s been awarded those contracts or how their performance is going.
Those transparency provisions would do a lot to prevent the kind of procurement disasters — like the [Tembisa Hospital scandal] “skinny jeans” and [health department corruption story linked to communications company] “Digital Vibes” — that we’ve seen across the health system in recent times. We shouldn’t have to rely on investigative journalism to draw out those issues.
In addition, there are three advisory committees to the fund that have been established. Only one of those committees, the one that has actually no function in the Act or the regulations, includes representatives of health service users, patient groups and civil society.
What it assumes is that decisions on what benefits will be provided, what they will cost and how much the fund will pay providers for those services are technical, value-neutral decisions. That is not the case.
The second concern is that the governance of the fund is so centralised in the minister of health, who appoints everybody — the ad hoc committee that interviews nominees for the fund, everybody who is on the fund board and the chairperson of the fund.
The third concern is related to population coverage. NHI is supposed to be a universal health coverage system, and yet it directly excludes a population that’s currently included in access to healthcare services.
MM: How far along is that court case?
SS: There are currently eight constitutional challenges to the NHI Act. Two of them are being heard in the Constitutional Court. There’s been an application by the government to essentially merge the remaining cases, and to stay those cases. That means we have to wait until there’s been a decision by the Court. So this is going to be a very long process.
The problem is, while we are waiting for implementation, while the department is dealing with so many court challenges, health system reform has been stunted.
MM: Where do we stand with the NHI Act right now?
SS: The department of health has published regulations for comment, and those regulations relate to the establishment of the NHI fund. But none of the provisions of the NHI Act have been promulgated, so none of them are actually in effect right now.
MM: What needs to happen for them to get promulgated?
What happens with any legislation is the president will sign it, and then there will be a date for it to start being implemented. Sometimes that happens immediately, and sometimes it happens only later. There are still provisions of the National Health Act, that was signed into law in 2003, that haven’t been promulgated. It’s a way of changing the law in a gradual way. It makes good sense that you don’t have to sign an Act into law, and then suddenly it’s all implementable. But it also makes it difficult to know what the legal status is and when anyone should expect any kind of change.
MM: So what happens in the meantime, particularly when it comes to access to healthcare for foreigners?
SS: The law says everyone is entitled to access healthcare services. Until the law changes, whether that’s through NHI or anything else, that is the law.
This story was produced by the Bhekisisa Centre for Health Journalism. Sign up for the newsletter.