Asylum seeker appeals hospital decision to stop dialysis

Lawyers are preparing to appeal an October 11 Johannesburg high court judgment which upheld a decision by Helen Joseph Hospital to discontinue life-saving dialysis treatment for an asylum seeker.

Alem Bazabe Ereselo arrived in SA in 2010, fleeing political persecution in Ethiopia. She applied for asylum. On July 7 that year 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 Johannesburg's 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 needed long-term dialysis until a transplant organ became available. Then the hospital told her she was ineligible for a transplant because she was an asylum seeker. Her dialysis would therefore be discontinued.

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.

High Court

Ereselo argued that the restrictive policy and legislation violated her rights to dignity, equality and health care.

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. The court based its decision on the 1997 Constitutional Court judgment of 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. He died soon afterwards.

The Appeal

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 was distinguishable from Soobramoney on a number of grounds.

Soobramoney was ineligible for a kidney transplant on medical grounds. He suffered from ischemic heart disease and cerebrovascular disease, both transplant disqualifiers, because they significantly reduce the probability of success. This is why he was denied 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 health care and it is unacceptable that little progress has been made in this regard since the Soobramoney judgment 22 years ago.

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

Also, the court may be asked to determine what constitutes emergency health care. Section 27(3) of the constitution guarantees everyone the right to emergency health care. In Soobramoney, the court concluded that, in the circumstances, dialysis did not constitute emergency health care. 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 health care, distinguishable from Soobramoney.

Dr Modisane, deputy director-general in the department of health Gauteng, made a compelling argument in the high court. He stated that appropriate relief would be to place Ereselo on a waiting list with other patients who have citizenship and permanent residence. To grant relief compelling the hospital to treat her ahead of these individuals would be untenable.

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

This article was first published by GroundUp.