Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice and Lawyers for Human Rights. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.
The rights of migrants and refugees to access the South African healthcare system is a complex matter. Laws and policies clash, and medical staff are left confused – especially as implementation of these laws differs depending on the staff or the clinic that you come into contact with. Meanwhile, the South African healthcare system struggles, in some areas, to provide sufficient medical care to any person, regardless of their nationality or status.
- How is the South African healthcare system structured?
In South Africa, the public healthcare system is structured in different levels:
- Clinics treat common health needs, known as ‘primary health care’. Clinics refer patients to hospitals when a patient needs further treatment. Clinics are run by specially trained primary health care nurses. There are different types of clinics such as mobile and satellite clinics.
- Community Health Centres are larger clinics and they usually have doctors as well as nurses.
- Hospitals are for surgery, emergency treatment and serious illness that cannot be treated at the Clinic. Clinics and doctors refer patients to hospitals: individuals can only present themselves without a referral if it is an emergency.
- What does the law say about migrants and refugees accessing healthcare in South Africa?
There are different national laws and policies in South Africa that map out who is able to access health care, and who must pay for these services. The Johannesburg Migrant Health Forum has developed a useful, printable poster on this topic to help you navigate your rights.
The rights set out in the Constitution of South Africa provide for all people within South Africa, regardless of their nationality or legal status. This fact has been confirmed by South African courts. The Constitution states that:
- everyone has the right to have access to health care services, and
- ‘no one’ may be refused emergency medical treatment.1
The National Health Act confirms that:
- All persons in South Africa can access primary health care at clinics and community health centres.2
- All pregnant or breastfeeding women and children under the age of six are entitled to health care services at any level.3
The Refugees Act sets out rights for asylum-seekers and refugees in South Africa. It states that:
- Refugees in South Africa have the same right to access healthcare as South African citizens.4 This right is widely interpreted to include asylum-seekers, as well.
This circular confirmed that:
- Refugees and asylum seekers, with or without permits, can access the same basic health care services as South African citizens (which means it is free at point of use, but can be charged thereafter), and
- Refugees and asylum seekers, with or without permits, can access Antiretroviral Treatment in cases of HIV.
This does not mean that all services are free. Primary healthcare services are provided free of charge, but higher levels of care are subject to a fee. In these cases, refugees and asylum seekers are subject to a means-test, which calculates the fee depending on the patient’s income. This is the same test that is applied to South African citizens.
As we’ve seen, the Constitution, the National Health Act and the Refugees Act spell out refugees and migrants’ rights to access health care. The Immigration Act is quite different, however. It states that staff at clinics and hospitals must find out the legal status of patients before providing care (except in an emergency).
The Immigration Act goes further to say that hospitals and clinics (along with other state institutions) ‘shall report to the Director-General any illegal foreigner’ or anyone whose status is not clear.5 However, this can only be enacted if this does not affect the patients’ rights that are set out in the laws that we have listed above – the Constitution, National Health Act and Refugees Act.
In our opinion, it is not justifiable to expect nurses and doctors to report people they suspect as ‘illegal foreigners’ to the Department of Home Affairs. This aspect of the Immigration Act is at odds with other, overarching laws in South Africa. It is also at odds with a widely-held international opinion that views healthcare facilities as ‘safe spaces’ – a message promoted by organisations such as Medicins Sans Frontieres.
- Who pays what at clinics and hospitals?
The Uniform Patient Fee Schedule sets out who must pay for certain services at a South African health facility, which is explained in the Classification of Patients for the Determination of Fees. Note that fees are not payable for “free services”.6
In short, the following non-nationals should be means-tested (in the same way as South African citizens) at the hospital:
- Non-South Africans who have permanent or temporary residency in a passport, and
- Anyone from the SADC region who is undocumented.7
The hospital looks at what they earn and decides what fee they should pay. Remember (as we stated above) that refugees and asylum seekers are subject to the same test; the hospital decides what level of fee they must pay depending on their income.
It means that the following people will have to pay full fees at the healthcare facility, and cannot access a means-test:
- Undocumented people from outside the SADC region,
- people on a tourist/visitor’s visa.
- What about accessing specialist treatment, such as kidney dialysis?
In short, this depends on the resources of the South African healthcare system. For specialized care, patients must be placed in a system that ‘queues’ them depending on their medical needs. In this system, refugees, asylum seekers and permanent residents must be treated the same as South African citizens.
The South African healthcare system struggles to provide specialist medical care to all those that need it – especially procedures such as kidney dialysis, or complex cancer treatments. This is due to a lack of resources and other issues. Both non-South Africans and South Africans are affected by this.
When it comes to providing these specialized services, the South African healthcare system must apply a principle called ‘progressive realization’. This the idea that the state must provide as much as it can, within the limitations that exist. They must also make an effort to improve the realization of socio-economic rights for everyone in South Africa. You can read more about this here.
This issue has been explored in South African court cases. The famous Soobramoney case (1997) found that, while the state must always provide everyone with emergency medical treatment, this does not include ‘chronic illnesses for the purpose of prolonging life’.8 The provision of this type of specialist care (such as dialysis) should be administered by hospitals to their best ability.
Patients must be placed in a system that ‘queues’ them depending on their medical needs. In this system, refugees, asylum seekers and permanent residents must be treated the same as South African citizens. There have been cases in which refugees were not provided with specialist services due to their ‘nationality’. If this treatment was denied solely because of the patient’s nationality, it is not constitutional.
- What about organ transplants?
As we have seen, specialist treatment must be provided according to the resources of the hospital. Refugees and asylum-seekers will be assessed in the same way as South African citizens – depending on their medical need and the resources available. However, for organ transplants, the National Health Act states that ‘an organ may not be transplanted into a person who is not a South African citizen or a permanent resident of the Republic without the Minister’s authorisation in writing’.9 Those who are not South Africans or permanent residents who are denied organ transplants would have to challenge this in court, or access the transplant at a private hospital.
- What about accessing treatment for HIV or TB?
Everyone in South Africa, regardless of their nationality or documentation status, has the right to access treatment for HIV (Anti-Retroviral Treatment) and TB. The Department of Health 2007 Circular confirms this.
- What about accessing private hospitals?
If a patient is able to afford private medical fees, they can be attended to by a private hospital or clinic, regardless of documentation.
- The reality of accessing healthcare in South Africa
It is clear that non-South Africans have several rights to access healthcare in South Africa. But in reality, things are different. There are several angles to think about.
Some migrants and refugees are denied access to healthcare simply because they are foreign.
There have been several instances of migrants and refugees being denied treatment solely based on their nationality. This is known as ‘medical xenophobia’. See Section 12 for a list of organisations to contact should you be denied medical treatment because of your nationality or status in South Africa.
Migrants or refugees being denied treatment is not always due to “medical xenophobia”.
However not all instances of poor treatment are ‘medical xenophobia’. For it to be xenophobic, medical treatment has to be wrongfully denied on the grounds of someone’s nationality or legal stay. There are other grounds that medical care might be wrongly denied. The healthcare system in South Africa is found to be in an ‘advanced state of disrepair in large parts of the country’. Staff can be highly stressed in such environments, and South Africans also face discrimination in accessing medical care.
The laws about non-South Africans’ access to healthcare are not consistent and create confusing situations for medical staff. People working in hospitals are given unclear guidance on who can be treated. This is not helped by the fact that the Department of Health has published circulars or memos which confuse medical staff about migrants’ and refugees’ rights to access health care. Remember, the laws explained in section X override circulations, policies and memos.
- How do we respond to inflammatory comments about ‘foreigners draining the healthcare system?’
The issue of non-South Africans accessing healthcare has also been the subject of controversial comments made by leaders and politicians. Several academics and organizations have condemned this. In summary, the main points to remember are:
- When dealing claims that ‘foreigners burden the healthcare system’, it is important to remember that, in South Africa, only 3% of the population are foreign-born, and the number of migrants and refugees using the South African healthcare system is most likely in line with this percentage.
- Furthermore, research has found that the majority of migrants in the Southern African Development Community (SADC) are not moving in search of healthcare, but are typically healthy, as they need to be in good health to travel. This what is called the ‘healthy migrant effect’.
- Non-South Africans pay for their healthcare services just as South Africans do. Non-South Africans are either subject to the same means-test hospital fees, or they are subject to the highest fees (if undocumented and not from SADC).
- The problem is not migrants’ use of the healthcare system; it is regarding the governmental planning of budgets with migration in mind. Internal migration (i.e. people moving within the country of their birth) accounts for much more than cross-border migration in SADC. Internal mobility is not taken into account when planning healthcare allocation. Furthermore, some budget and fiscal planning is based on outdated population Updated population statistics and research must be used when planning such services.
- What is needed to improve the situation?
As mentioned, the South African public healthcare system is struggling to address the nation’s needs. Many people struggle with access, South African and non-South African alike. Groups of the population, such as people living in rural areas, will face specific challenges. Similarly, there are unique and specific challenges that are faced by non-nationals, which are mostly linked to language and documentation. There are some actions which can assist in clarifying this complex matter:
- There is a deep need for evidence-informed policy processes and frameworks. Despite being a region that witnesses such high levels of migration, these movements are not commonly taken into consideration when developing health responses – including for treatment and prevention of communicable diseases.
- There has been little case-law (legal cases) on the issue of migrants and refugees access to health. The laws, policies and practises around this issue are very unclear. It would be beneficial to receive legal clarification on such issues.
- Governmental planning of healthcare budgets and resource allocation must take into consideration correct predictions of both cross-border and internal migration patterns in South Africa, using current population data.
- The healthcare system needs to be more responsive and reactive to migration: South Africa would benefit from migration-aware and mobility-competent healthcare systems, that facilitate movement within the country (including within cities) and between countries in SADC.
- We advocate for increased awareness about migrants’ health rights – training on migration, mobility, health and development for all levels of staff in the Department of Health, including frontline staff, healthcare providers, facility managers, district and provincial health co-ordinators, and within the national department, would be beneficial. As one expert explains, ’understanding of migration is poor within sectors responsible for developing appropriate responses; negative, unsupported assumptions relating to the prevalence of cross-border migration, the spread of disease, and the burden on receiving health systems prevail.”
- We advocate for the printing and distribution of uniform and correct classification of non-nationals when being means tested for co-payment for healthcare, and the uniform implementation of national monitoring of the correct implementation of existing legislation within health facilities.
- We advocate for those who are denied rightful access to health to lodge the matter with the Office of Health Ombud or to contact one of the organisations below for advice.
- I have more questions. Who can I ask?
You can contact one of the following organizations for further questions and advice.
- Sonke Gender Justice
- Lawyers for Human Rights
- Legal Resources Centre
- Office of Health Ombud
- The Scalabrini Centre of Cape Town
- The Johannesburg Migrant Health Forum brings together different organisations working in migration and health in Gauteng. Their website provides several resources including ‘What are my rights?’ pamphlets for patients in Gauteng, in both an English Version and a French Version.