Asylum seeker appeals hospital decision to stop dialysis

On 11 October the Johannesburg High Court handed down a judgment upholding a decision by Helen Joseph Hospital to discontinue life-saving dialysis treatment for an asylum seeker. Lawyers for the asylum seeker are preparing an appeal.

Alem Bazabe Ereselo arrived in South Africa in 2010, fleeing political persecution in Ethiopia. She applied for asylum. On 7 July 2010 she was informed that her application had been rejected. She appealed to the Refugee Appeal Board, which to date has not made a decision.

In January 2019, Ereselo was admitted to Helen Joseph Hospital presenting symptoms of kidney failure. Doctors performed tests to determine the possibility of her recovery. An agreement was signed for her to receive temporary dialysis treatment while medical investigations were concluded and assessment of her eligibility for a kidney replacement programme were conducted.

Soon thereafter, the hospital informed her that she would need long-term dialysis until a transplant organ became available. But the hospital also told her she was ineligible for a transplant because she is an asylum seeker. Her dialysis would therefore be discontinued.

In coming to this decision, the hospital relied on Department of Health policy and Section 61(3) of the National Health Act, which restricts transplant services to South African citizens, permanent residents and recognised refugees.

Ereselo approached the High Court on an urgent basis for relief.

In the High Court Ereselo argued that the restrictive policy and legislation violated her rights to dignity, equality and healthcare.

The hospital argued that the decision to discontinue treatment was based on its limited resources.

The High Court agreed with the hospital, dismissing Ereselo’s claim and basing its decision on the 1997 Constitutional Court judgment in Soobramoney v Minister of Health.

Soobramoney was a South African citizen who tried to interdict a state hospital from discontinuing his dialysis treatment. The court concluded that, given the state’s limited resources, decisions of this nature must be holistic, focusing on the larger needs of society rather than those of a particular person. Accordingly, Soobramoney’s claim was dismissed and he died soon afterwards.

Ereselo’s lawyers intend to appeal the decision, arguing against the High Court’s reliance on the Soobramoney judgment. On various public platforms, they have argued that the matter at hand is distinguishable from Soobramoney on a number of grounds.

Soobramoney was ineligible for a kidney transplant on medical grounds. He suffered from ischaemic heart disease and cerebrovascular disease, both transplant disqualifiers because they significantly reduce the probability of success. This was why he was denied one of the limited number of places available for dialysis.

In Ereselo’s case, her ineligibility was based entirely on her legal status. The hospital letter giving the reasons for her ineligibility stated: “You are not a South African citizen and you do not possess verified documents pertaining to refugee status or permanent citizenship awarded.”

Ereselo’s lawyers also argue that the state has a duty to progressively realise the right to healthcare and it is unacceptable that little progress has been made in this regard since the Soobramoney judgement, which was 22 years ago.

The appeal will raise topical questions for South African jurisprudence on the rights of asylum seekers. The court will probably be asked to determine the constitutionality of discontinuing treatment on the grounds of a person’s legal status, rather than on medical grounds.

Also, the court may be asked to determine what constitutes emergency healthcare. Section 27(3) of the Constitution guarantees everyone the right to emergency healthcare. In Soobramoney’s case, the court concluded that, in the circumstances, dialysis did not constitute emergency healthcare. The court highlighted that the nature of treatment sought by Soobramoney would be an “ongoing state of affairs” resulting from an incurable condition. In Ereselo’s case the treatment would not be ongoing. It would last only until she received a kidney transplant. So, her treatment may fall into the definition of emergency healthcare, distinguishable from Soobramoney.

Dr Medupe Modisane, deputy director general in the Gauteng Department of Health, made a compelling argument in the High Court when he stated that “appropriate relief” would be to place Ereselo on a waiting list with other patients who have citizenship and permanent residence. But to grant relief compelling the hospital to treat her ahead of these individuals would be untenable.

Ereselo’s predicament illustrates the devastating effect of South Africa’s poorly functioning asylum system. Had Ereselo’s application been finalised timeously, the issue may have been avoided. DM