The high cost of living
Robert Kirby : Loose cannon
Our proud new Bill of Rights makes many guarantees. Among these is something called the right to life, generally considered as being inviolate.
Human life is an inalienable possession, of incalculable worth, bestowed on all men and women.
A mortal gift that is simply not up for auction. In other words a superseding right that no one - not even a lawyer - has the right to tinker with.
Which is why the Constitutional Court gave no quarter when it came to upholding the abolition of the death penalty. Now it seems a death sentence can come in thin disguise, for the same court has performed a bewildering sidestep. While not exactly giving themselves the right to decide on the viability of a particular human life, the court has issued some rather venturesome guidelines by identifying a set of criteria which sanction medical authorities who wish to deny treatment to those examples of life they feel are not worth the candle.
Thiagraj Soobramoney, who died last Sunday, is obviously the case in point. Had Soobramoney been, say, a serial murderer, the earlier decision of the Constitutional Court guaranteed his life would never fall under the shadow of the gallows. Instead, shelter and sustenance for the rest of his days would be guaranteed, regardless of the Budget of the government department responsible for keeping him in jail. He would enjoy professional medical care, again regardless of cost. Even if his kidneys failed while he was in prison, he would receive the necessary treatment.
When the real Soobramoney applied to the Constitutional Court for relief, they ruled that his right to free medical treatment - and by extension all others in his position - was subject to the financial limitations of the Health Department. No limitation of rights appears conjunctive with the right to life. In general terms there is provision for “reasonable legislative action within its [the Department of Health’s] available resources to achieve progressive realisation of each of the rights.”
Here is the scenario. Aman called X lives in Bothasig or Table View or any other of the suburbs near Cape Town which daily get some 14 tons of sulphur dumped on them by the Caltex Oil Refinery. Like Soobramoney, X is poor and can’t afford to move. He has seen several of his older friends die, has seen many others spend their time coughing up dark slime from their lungs.
The man’s children all suffer from bronchial complaints and will, when they grow older, begin to suffer from what a great many people in those areas do suffer from, chronic obstructive airways disease.
Like many others in his area, X has complained vigorously to the authorities about the pollution but all they’ve done so far is appoint task groups and make empty promises. His lungs become so bad he needs a respirator in order to keep alive. He goes along to his nearest hospital and they say, sorry, you cannot have one because we can’t afford it.
The moral is quite clear. X’s health is wrecked because the government has failed to control the pollution. The same government now refuses to treat him. It’s called the Kafka option.
There is little profit in once again rhapsodising on how the current Department of Health is being managed (or even trying to speculate on how many lives might have been saved by use of the R10-million squandered on Sarafina II) for this would divert attention from the justifications offered by the judges in defence of their decision.
Notwithstanding the practical consideration behind the arguments offered in defence of their latest decision by the Constitutional Court, it is hard not to wonder why they deliver a judgment which is essentially political in nature.
As was to be expected, these arguments came drenched in the appropriate angst. Judge Arthur Chaskelson emitted the touching line: “One cannot but have sympathy for the appellant and his family who face the cruel dilemma of having to impoverish themselves to obtain the treatment Soobramoney needs in order to prolong his life.” The use of the term “prolong” is both moot and obfuscatory. With dialysis Soobramoney might well have had quite a few years more. The only thing that rendered his condition “terminal” was the withdrawal of his treatment.
In terms of Clause 27 of the Bill of Rights: “No one may be refused emergency medical treatment.” That Soobramoney died within a few days of the decision to deny him treatment surely defines his needs as having been acute.
The Bill of Rights comes with a set of limitations and it is these that the court appears to have applied. What I find difficult to understand is why the court did not apply any limitation when they ruled on the constitutionality of the right to life in regard to the abolition of the death penalty.
It is depressing to witness how many formal administrative structures in the new South Africa so assiduously replicate those of the apartheid years. From the moment his illness became expensive to treat, what befell Soobramoney was more or less what, in apartheid’s heyday, used to befall black people in search of medical treatment that went much beyond the patch and soothe.
Unfortunately the Constitutional Court’s decision will offer bureaucrats yet another excuse not to disjoin themselves from the ethical trespasses of the past. In effect the court has awarded these bureaucrats the right to condemn people to death on the basis of what they - guided only by their own wisdom - believe is human viability expressed in terms of cost alone.
Has anybody, anywhere, got the right to say: this man’s life is too expensive to save, but that man’s is not? Unless we unashamedly adopt fascist codes, we should all pray not.
BLURB:The only thing that rendered Soobramoney’s condition `terminal’ was the withdrawal of his treatment