Addressing the needs of the disadvantaged in our health system

(I apologize for a computer malfunction)

Patients need an advocate to help them navigate society – particularly the children, the ill, and the disadvantaged. Already a health policy attorney, I hope to also enter the world of patient advocacy and work in tandem with doctors (to be part of their medical home) to address these needs.  For it is proven, that these factors will lead to healthier outcomes.  But more so, helping these individuals is the moral thing to do.

We often don’t realize that we are all one step away from being ill or disadvantaged. We forget that the ill and disadvantaged are our friends and family.  We neglect that every child is our child.  We cannot refuse to help them all. 

Unfortunately, resources are limited so policy makers define “essential” in terms that always leave some without.  That does not mean we cannot find a way to take care for the disadvantaged or advocate for a change in what we consider “essential.”

Other countries have already addressed the issue of what the right to health means.  Unfortunately since the US does not recognize the right to health, we do not discuss these issues as we should.  Below though are some interesting cases.

The Constitution of the Republic of South Africa specifically recognizes a right to life.  In Soobramoney v. Minster of
Health, the South African Constitutional Court was one of the first courts
to address this right.[1]  Soobramoney was a 41 year old diabetic male
whose kidneys had failed and was in the final stages of chronic renal failure.[2]  However, his life could be extended if he had
access to regular renal dialysis which he sought at Addington State Hospital.[3]  This hospital though had limited dialysis
machines and was not able to provide Soobramoney with treatment he requested.[4]  The hospital followed a set policy that only
those patients who suffered from acute renal failure that could be treated and
remedied by dialysis were given automatic access to dialysis and those with
chronic renal failure were only accepted to the treatment program if they were
eligible for a kidney transplant.[5]  Soobramoney was not eligible for such a
transplant and thus was denied treatment at the hospital.[6]  He tried to obtain treatment from private
hospitals and doctors but he could not afford the cost of continued treatment.[7]  Relying on §11 which states that ‘Everyone
has the right to life’ and §27(3) providing ‘No one may be refused emergency
medical treatment,’ Soobramoney claimed that the hospital had to provide him
with emergency ongoing dialysis treatment for his kidney failure.  However, the court held that the rights
relied upon by Soobramoney “are dependent upon the resources available” and
that “rights themselves are limited by reason of the lack of resources.”[8]  Thus, though Soobramoney did have a right to
life, because there were more patients suffering from chronic renal failure
than there were dialysis machines, his right was limited.  In its holding, the court recognized that
this case “engages our compassion to the full” yet also that the right to life
cannot “constitutionally be extended to encompass the right indefinitely to
evade death.”[9]

Again, in Minister of Health and others
v. Treatment Action Campaign and Others, the Constitutional Court of South
Africa faced this issue of a constitutional right to life.[10]  Unlike Soobramoney, this case impacted not
just one person, but the entire community who might be prescribed nevirapine, a
drug used to reduce the risk of mother-to-child transmission of HIV.[11]  Previously, the South African government
devised a program to deal with mother-to-child transmission of HIV at birth and
decided to use nevirapine.  However, the
government restricted availability in the public health sector contending that
navirapine should only be administered as part of a comprehensive program
including testing, counseling, formula feeding, vitamins and antibiotics and
the monitoring of the children’s progress.[12]
  The Treatment Action Campaign and
others concerned with the treatment of people with HIV, AIDS and the prevention
of new transmission felt these restrictions were unreasonable considering the Constitution
of the Republic of South Africa states there is a right to life.[13]  The government claimed that although
navirapine effectively prevented the transmission of HIV from mother to child
at birth, the results would be countered if the mother continued to breast
feed, a claim which was unfounded.[14]  The court referred to its decisions in Soobramoney
v. Minister of Health, Kwazulu-Natal and Government of the Republic of
South Africa v. Grootboom which both recognized that South Africa has a
constitutional duty to comply with positive obligations on it by §§26 and 27 of
the constitution.  In light of this duty,
the court held that the government must remove the restrictions that prevented
nevirapine from being made available for the purpose of reducing the risk of
mother to child transmission of HIV at public hospitals and clinics. [15]
 In its holding, the court found that “the
provision of a single dose of nevirapine to mother and child for the purpose of
protecting the child against the transmission of HIV is, as far as the children
are concerned, essential. Their needs are ‘most urgent’ and their inability to
have access to nevirapine profoundly affects their ability to enjoy all rights
to which they are entitled. Their rights are ‘most in peril’ as a result of the
policy that has been adopted and are most affected by a rigid and inflexible
policy that excludes them from having access to nevirapine.”[16]

[1]
Soobramoney v. Minister of Health (KwaZulu-Natal),
4 BHRC 308 (Constitutional Court, South Africa 1997).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10]
Minister of Health and others v. Treatment Action Campaign and others, 13 BHRC
1 (Constitutional Court, South Africa 2002).

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.