Constitutional Court of South Africa (CCSA), Soobramoney v. Minister of Health, 1998 (1) South Africa Law Reports 765 (CC) (1997), excerpt | Samuel Moyn | August 15, 2016

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Constitutional Court of South Africa (CCSA), Soobramoney v. Minister of Health, 1998 (1) South Africa Law Reports 765 (CC) (1997), excerpt

Constitutional Court of South Africa, Soobramoney v. Minister of Health (Kwazulu-Natal) (1997)

CHASKALSON P:

[1] The appellant, a 41 year old unemployed man, is a diabetic who suffers from ischaemic heart disease and cerebro-vascular disease which caused him to have a stroke during 1996.  In 1996 his kidneys also failed.  Sadly his condition is irreversible and he is now in the final stages of chronic renal failure.  His life could be prolonged by means of regular renal dialysis.  He has sought such treatment from the renal unit of the  Addington state hospital in Durban.  The hospital can, however, only provide dialysis treatment to a limited number of patients.  The renal unit has 20 dialysis machines available to it, and some of these machines are in poor condition.  Each treatment takes four hours and a further two hours have to be allowed for the cleaning of a machine, before it can be used again for other treatment.   Because of the limited facilities that are available for kidney dialysis the hospital has been unable to provide the appellant with the treatment he has requested.

[2] The reasons given by the hospital for this are set out in the respondent’s answering affidavit deposed to by Doctor Saraladevi Naicker, a specialist physician and nephrologist in the field of renal medicine who has worked at Addington Hospital for 18 years and who is currently the President of the South African Renal Society.   In her affidavit Dr Naicker says that Addington Hospital does not have enough resources to provide dialysis treatment for all patients suffering from chronic renal failure.  Additional dialysis machines and more trained nursing staff are required to enable it to do this, but the hospital budget does not make provision for such expenditure.  The hospital would like to have its budget increased but it has been told by the provincial health department that funds are not available for this purpose.

[3] Because of the shortage of resources the hospital follows a set policy in regard to the use of the dialysis resources.   Only patients who suffer from acute renal failure, which can be treated and remedied by renal dialysis are given automatic access to renal dialysis at the hospital.  Those patients who, like the appellant, suffer from chronic renal failure which is irreversible are not admitted automatically to the renal programme.  A set of guidelines has been drawn up and adopted to determine which applicants who have chronic renal failure will be given dialysis treatment.  According to the guidelines the primary requirement for admission of such persons to the dialysis programme is that the patient must be eligible for a kidney transplant.  A patient who is eligible for a transplant will be provided with dialysis treatment until an organ donor is found and a kidney transplant has been completed.

[4] The guidelines provide that an applicant is not eligible for a transplant unless he or she is “[f]ree of significant vascular or cardiac disease [but Soobramoney is not]. …

[5] The appellant has made arrangements to receive dialysis treatment from private hospitals and doctors, but his finances have been depleted and he avers that he is no longer able to afford such treatment.  In July 1997 he made an urgent application to the Durban and Coast Local Division of the High Court for an order directing the Addington Hospital to provide him with ongoing dialysis treatment  and interdicting the Respondent from refusing him admission to the renal unit of the hospital.  The appellant claimed that in terms of the 1996 Constitution the Addington Hospital is obliged to make dialysis treatment available to him. 

[7] The appellant based his claim on section 27(3) of the 1996 Constitution which provides:…

[8] We live in a society in which there are great disparities in wealth.  Millions of people are living in deplorable conditions and in great poverty.  There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services.  These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring….

[11] What is apparent from these provisions is that the obligations imposed on the state by sections 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources.  Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet  these needs would not presently be capable of being fulfilled.  This is the context within which section 27(3) must be construed.

[12] The appellant urges us to hold that patients who suffer from terminal illnesses and require treatment such as renal dialysis to prolong their lives are entitled in terms of section 27(3) to be provided with such treatment by the state, and that the state is required to provide funding and resources necessary for the discharge of this obligation.

[13] The words “emergency medical treatment” may possibly be open to a broad construction which would include ongoing treatment of chronic illnesses for the purpose of prolonging life.  But this is not their ordinary meaning, and if this had been the purpose which section 27(3) was intended to serve, one would have expected that to have been expressed in positive and specific terms.

[14] Counsel for the appellant argued that section 27(3) should be construed consistently with the right to life entrenched in section 11 of the Constitution and that everyone requiring life-saving treatment who is unable to pay for such treatment herself or himself is entitled to have the treatment provided at a state hospital without charge. 

[15] This Court has dealt with the right to life in the context of capital punishment but it has not yet been called upon to decide upon the parameters of the right to life or its relevance to the positive obligations imposed on the state under various provisions of the bill of rights.   In India the Supreme Court has developed a jurisprudence around the right to life so as to impose positive obligations on the state in respect of the basic needs of its inhabitants.  Whilst the Indian jurisprudence on this subject contains valuable insights it is important to bear in mind that our Constitution is structured differently to the Indian  Constitution.  Unlike the Indian Constitution ours deals specifically in the bill of rights with certain  positive obligations imposed on the state, and where it does so, it is our duty to apply the obligations as formulated in the Constitution and not to draw inferences that would be inconsistent therewith.  

[17] The purposive approach will often be one which calls for a generous interpretation to be given to a right to ensure that individuals secure the full protection of the bill of rights, but this is not always the case, and the context may indicate that in order to give effect to the purpose of a particular provision “a narrower or specific meaning” should be given to it.

[18] In developing his argument on the right to life counsel for the appellant relied upon a decision of a two-judge bench of the Supreme Court of India in Paschim Banga Khet Mazdoor Samity and others v State of West Bengal and another, where it was said:

“…  Article 21 imposes an obligation on the State to safeguard the right to life of every person.  Preservation of human life is thus of paramount importance.  The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life.  Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.”

These comments must be seen in the context of the facts of that case which are materially different to those of the present case.   It was a case in which constitutional damages were claimed.  The claimant had suffered serious head injuries and brain haemorrhage as a result of having fallen off a train.  He was taken to various hospitals and turned away, either because the hospital did not have the necessary facilities for treatment, or on the grounds that it did not have room to accommodate him.  As a result he had been obliged to secure the necessary treatment at a private hospital.  It appeared from the judgment that the claimant could in fact have been accommodated in more than one of the hospitals which turned him away and that the persons responsible for that decision had been guilty of misconduct.   This is precisely the sort of case which would fall within section 27(3).  It is one in which emergency treatment was clearly necessary.  The occurrence was sudden, the patient had no opportunity of making arrangements in advance for the treatment that was required, and there was urgency in securing the treatment in order to stabilise his condition.  The treatment was available but denied.

[19] …  If section 27(3) were to be construed in accordance with the appellant’s contention it would make it substantially more difficult for the state to fulfill its primary obligations under sections 27(1) and (2) to provide health care services to “everyone” within its available resources.  It would also have the consequence of prioritising the treatment of terminal illnesses over other forms of medical care and would reduce the resources available to the state for purposes such as preventative health care and medical treatment for persons suffering from illnesses or bodily infirmities which are not life threatening.   In my view much clearer language than that used in section 27(3) would be required to justify such a conclusion….

[21] The applicant suffers from chronic renal failure.  To be kept alive by dialysis he would require such treatment two to three times a week.   This is not an emergency which calls for immediate remedial treatment.   It is an ongoing state of affairs resulting from a deterioration of the applicant’s renal function which is incurable.  In my view section 27(3) does not apply to these facts.

[22] The appellant’s demand to receive dialysis treatment at a state hospital must be determined in accordance with the provisions of sections 27(1) and (2) and not section 27(3).  These sections entitle everyone to have access to health care services provided by the state “within its available resources”.

[23] In the Court a quo Combrinck J held that “[i]n this case the respondent has conclusively proved that there are no funds available to provide patients such as the applicant with the necessary treatment.”  This finding was not disputed by the appellant, but it was argued that the state could make additional funds available to the renal clinic and that it was obliged to do so to enable the clinic to provide life saving treatment to the appellant and others suffering from chronic renal failure.

[24] At present the Department of Health in KwaZulu-Natal does not have sufficient funds to cover the cost of the services which are being provided to the public.  In 1996–1997 it overspent its budget by R152 million, and in the current year it is anticipated that the overspending will be R700 million rand unless a serious cutback is made in the services which it provides.  The renal unit at the Addington Hospital has to serve the whole of KwaZulu-Natal and also takes patients from parts of the Eastern Cape. There are many more patients suffering from chronic renal failure than there are dialysis machines to treat such patients.  This is a nation-wide problem and resources are stretched in all renal clinics throughout the land.  Guidelines have therefore been established to assist the persons working in these clinics to make the agonising choices which have to be made in deciding who should receive treatment, and who not.  These guidelines were applied in the present case. 

[25] By using the available dialysis machines in accordance with the guidelines more patients are benefited than would be the case if they were used to keep alive persons with chronic renal failure, and the outcome of the treatment is also likely to be more beneficial because it is directed to curing patients, and not simply to maintaining them in a chronically ill condition.  It has not been suggested that these guidelines are unreasonable or that they were not applied fairly and rationally when the decision was taken by the Addington Hospital that the appellant did not qualify for dialysis. …

[28] The appellant’s case must be seen in the context of the needs which the health services have to meet, for if treatment has to be provided to the appellant it would also have to be provided to all other persons similarly placed.    It is estimated that the cost to the state of treating one chronically ill patient by means of renal dialysis provided twice a week at a state hospital is approximately R60 000 per annum.  If all the persons in South Africa who suffer from chronic renal failure were to be provided with dialysis treatment – and many of them, as the appellant does, would require treatment three times a week – the cost of doing so would make substantial inroads into the health budget.  And if this principle were to be applied to all patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased to the prejudice of other needs which the state has to meet. 

[29] The provincial administration which is responsible for health services in KwaZulu-Natal has to make decisions about the funding that should be made available for health care and how such funds should be spent.  These choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met.  A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.

[30] Although the problem of scarce resources is particularly acute in South Africa this is not a peculiarly South African problem.   It is a problem which hospital administrators and doctors have had to confront in other parts of the world, and in which they have had to take similar decisions.  In his judgment in this case Combrinck J refers to decisions of the English courts in which it has been held to be undesirable for a court to make an order as to how scarce medical resources should be applied, and to the danger of making any order that the resources be used for a particular patient, which might have the effect of denying those resources to other patients to whom they might more advantageously be devoted…

[31] One cannot but have sympathy for the appellant and his family, who face the cruel dilemma of having to impoverish themselves in order to secure the treatment that the appellant seeks in order to prolong his life.  The hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the state to provide him with the treatment.  But the state’s resources are limited and the appellant does not meet the criteria for admission to the renal dialysis programme.  Unfortunately, this is true not only of the appellant but of many others who need access to renal dialysis units or to other health services.  There are also those who need access to housing, food and water, employment opportunities, and social security.  These too are aspects of the right to

“. . . human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity.”

The state has to manage its limited resources in order to address all these claims.  There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society….

 

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August 15, 2016

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Samuel Moyn

Harvard Law School

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