Pat Sidley
IT’S midnight, you’re on the table at HF Verwoerd=20 hospital. You’ve been told that your life has been=20 severely limited by your ailing heart and lungs.
In a shooting on the Ben Schoeman highway, a perfectly=20 good set of heart and lungs has become available — but=20 your surgeon cannot go ahead and save your life because=20 the province has decided to halt heart transplants.
Your surgeon decides to put the superintendent-general=20 of the province, Dr Ralph Mgijima, on the line and=20 interrupts his dinner party with a telephone call to=20 his house asking permission to save your life with the=20 transplant operation.
He, however, has had enough of the midnight calls and=20 besides, he has had to suspend plans to build a primary=20 health care facility in Phola Park, as the province has=20 run out of money.
So he says “no”. Your surgeon then sews your ill- functioning heart and lungs back into your body and=20 sends you back to the ward. You regain consciousness=20 enough the next day to believe your rights have been=20 seriously infringed by the province.
The facility is there, you’re the breadwinner in a=20 family with six children and you are now likely to die=20 as a result of this decision. The family will be left=20
Besides this, the new Constitution has enshrined your=20 right to life. The province however, has taken action=20 which would deny that very right. You would like to=20 know what chance you have of succeeding in a legal=20
There have been precedents in the United Kingdom in=20 which the courts have held that before stopping a=20 procedure, the health authority ought to have consulted=20 properly with the local community, and other precedents=20 where patients have been denied major operations=20 because they are heavy smokers and this conflicts with=20 health authority policy which limits major operations=20 in a setting of insufficient cash available.
According to law Professor Dennis Davis, you would=20 probably have a chance of succeeding in the action,=20 both in the civil courts (claiming damages and perhaps=20 forcing the granting of the operation) and you may have=20 a chance in the Constitutional Court as your right to=20 life is clearly being breached.=20
You may be able to use the constitutional argument to=20 bolster your civil court claim — but he says, so far=20 there does not seem to be room to claim damages in the=20 Constitutional Court if your rights have been=20
The onus, he says, on the health authority in the civil=20 claim, would be to show that their limitation on=20 spending which stopped your transplant was justifiable.=20 It would not be enough to say simply “we could not=20 afford it”. And they would have to deal with their=20 apparent obligation to preserve life as enshrined in=20 the Constitution.