Claim alleging a violation of health rights by South African health authorities when refusing renal dialysis treatment to a patient suffering from terminal illness; whether there has been a violation of the right to life; whether there has been a violation of the right to medical treatment; rationality review; allocation of resources; progressive realization.
The claimant, Thiagraj Soobramoney, suffered from chronic renal failure (among other diseases) and was in dire need of renal dialysis in order to stave off death. When he ran out of personal funds with which to pay private providers, he sought service in Addington Hospital, a state-funded hospital in Durban. The hospital refused Soobramoney treatment because his general physical condition did not qualify him for treatment under the criteria or guidelines used by the hospital to determine eligibility for such treatments. Suffering from a terminal illness and in need for renal dialysis to prolong his life, Soobramoney brought a constitutional application seeking an order for the hospital to provide him with access to dialysis treatment. The High Court dismissed his application. On appeal, the Constitutional Court having found the hospital’s standards well within the bounds of reason and fairly applied to Soobramoney, unanimously dismissed the appeal and held that the failure to provide treatment to him did not violate the South African Bill of Rights. The Court held that the right to health care does not have to be inferred from the right to life because section 27 of the Constitution specifically deals with health rights. The case largely turned on whether the hospital violated Soobramoney’s right not to be “refused emergency medical treatment” (in accordance with section 27(3) of the Constitution). The Court found that Soobramoney’s case was not an “emergency” in the sense of a sudden catastrophe, but rather an “ongoing state of affairs”. Instead, the case falls under sections 27(1) and (2) of the Constitution which deal with the allocation of non-emergency medical treatment. Obligations imposed on the state regarding access to health care are dependent upon the resources available, as stated in sections 27(1) and (2). Because of limited resources the hospital had adopted a policy of admitting only those patients who could be cured within a short period and those with chronic renal failure who are eligible for a kidney transplant. The Court declared that it could not interfere with decisions taken in good faith by political organs and medical authorities as to how to allocate budgets and decide on priorities.
Keywords: Soobramoney v. Minister of Health (Kwazulu-Natal), Life, Right
This decision of the Constitutional Court of South Africa seemed to signal an excessively deferential approach in social and economic rights cases. However, the subsequent decision of the Constitutional Court in Grootboom has alleviated these concerns. The Court would appear to have moved to a more rigorous “reasonableness” standard of review, requiring attention to the needs of the most disadvantaged if the governments are to fulfil their constitutional obligations.
This was the first case in South Africa in which the Constitutional Court had to decide on the constitutional right to health care for everybody in light of the problem of scarce resources for the funding of the health care system. The Court accepted that rationing of resources is integral to health service delivery in the public sector even though this might support ongoing inequities between the private and public sector. However, the Court implied that there might be grounds for the challenge of executive policies if such policies were unreasonable or if they were not applied fairly and reasonably.
Counsel for the Appellant: MA Jacobs instructed by Vijay Kooblal and Associates Kooblal House 101 Stamford Hill Road Morningside Durban 4001 www.vkooblal.com firstname.lastname@example.org Counsel for the Respondent: CJ Pamenter SC and JS Moodley instructed by the State Attorney, KwaZulu-Natal