Soobramoney v.

Minister of Health
[1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696

Country: South Africa

Region: Africa
Year: 1997
Court: Constitutional Court
Health Topics: Chronic and noncommunicable diseases, Health care and health services, Health systems
and financing, Hospitals
Human Rights: Right to health

Facts

The appellant was a 41-year old, unemployed, diabetic man who suffered from ischaemic heart disease,
cerebro-vascular disease, and renal failure. His condition was chronic and irreversible. In order to continue
address this condition and prolong his life, he required regular renal dialysis treatment. The appellant had
made all efforts to continue treatment privately, but was not longer financially capable of doing so, and as a
result he sought from Addington State Hospital in Durban. However, due to availability of only 20 renal
dialysis machines, the hospital had established very specific policy with regard to the use of these machines.
Under this policy, only individuals with acute renal failure were given automatic access to the hospital’s
dialysis machines because their condition was treatable and remediable. Patients with chronic renal failure
were instead required to meet certain criteria, primarily eligibility for a kidney transplant, in order to receive
dialysis. The hospital, therefore, refused the appellant treatment because he did not meet the necessary
hospital criteria for renal dialysis eligibility.

The appellant sought relief from the High Court arguing that the hospital’s policy violated section 27(3) of the
Constitution of South Africa, guaranteeing the right to emergency medical treatment, and section 11,
protecting the right to life. The claim was dismissed by the High Court and the appellant appealed that
decision.

Decision and Reasoning

The Constitution Court was asked to determine whether the hospital policy violates Articles 27(3) and 11 of
the Constitution of South Africa. The Court reasoned that the state has a constitutional duty to comply with
the obligations imposed on it by section 27 of the Constitution. However, it has not been shown in the present
case that the state’s failure to provide renal dialysis facilities for all persons suffering from chronic renal failure
constitutes a breach of those obligations.

The purpose of section 27(3) is to ensure that treatment is given in an emergency situation and is not
frustrated by bureaucratic requirements and other formalities. Although the words “emergency medical
treatment” may be broadly interpreted to include ongoing treatment of chronic illnesses for the purpose of
prolonging life, interpreting the language in such a manner would run counter to the ordinary meaning of the
phrase and would be contrary to the purpose of section 27(3). In this case, the appellant suffered from
chronic renal failure, a condition that is not an emergency situation that calls for immediate remedial
treatment. Furthermore, the obligations imposed on the state by the Constitution under sections 26 and 27 in
regards to access to housing, health care, food, water, and social security are dependent upon the availability
of resources for such purposes. Correspondingly, the rights guaranteed are limited by the availability of those
resources. As such the state may reasonably determine how to allocate those limited resources.

Decision Excerpts

“In our Constitution the right to medical treatment does not have to be inferred from the nature of the state
established by the Constitution or from the right to life which it guarantees. It is dealt with directly in section
27. 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.” Para. 19.

“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.” Para. 28.

“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.” Para. 29.

"The inescapable fact is that if governments are unable to confer any benefit on any person unless it confers
an identical benefit on all, the only viable option would be to confer no benefit on anybody (Brown v British
Columbia (Minister of Health) (1990) 48 CRR 137, 157-8 (Can SC) considered)." Page 32.

"Health care rights by their very nature have to be considered not only in a traditional legal context structured
around the ideas of human autonomy but in a new analytical framework based on the notion of human
interdependence. When rights by their very nature are shared and interdependent, striking appropriate
balances between the equally valid entitlements or expectations of a multitude of claimants should not be
seen as imposing limits on those rights but as defining the circumstances in which the rights may most fairly
and effectively be enjoyed." Page 33-34.

"However the right to life may come to be defined, there is in reality no meaningful way in which it can
constitutionally be extended to encompass the right indefinitely to evade death." Page 36.

Copyright © 2015 www.GlobalHealthRights.org