The National Health Act
Your right to emergency medical treatment includes private hospitals
“No one may be refused emergency medical treatment”. This is according to section 27(3) of the Constitution, which makes this a human right. The National Health Act 61 of 2003 gives effect to this right and echoes the same protection. But how far does this right go, especially with regard to private hospitals? Do they have to uphold this right and is there a cost implication if one is treated for an emergency at a private hospital? This article gives more insight into this and clarifies the responsibility of private hospitals with regard to this human right.
What is considered as a medical emergency?
There is no direct legislative definition of what constitutes a medical emergency. The National Health Act only reiterates that no health establishment may refuse a person emergency medical treatment, but it offers no definition for “emergency”.
However, in the case of Soobramoney v Minister of Health (KwaZulu-Natal) (CCT32/97) [1997] ZACC 17, the Constitutional Court classified a medical emergency as a “dramatic, sudden situation or event which is of a passing nature in terms of time” requiring immediate medical attention in order to avert harm. This case raised the question as to whether a chronic illness will constitute as a medical emergency.
In this matter, the appellant was suffering from chronic renal failure and regular dialysis could help prolong his life. At the time, the public hospital was unable to provide him with the dialysis treatment because its policy only allowed for patients with acute renal failure that can be remedied by the dialysis to have automatic access to the service. The appellant did not fall in this category and he did not qualify for assistance at the public hospital. He approached the Constitutional Court to order the public hospital to grant him access to dialysis on the basis of section 27(3), which is the right to emergency medical treatment. The Constitutional Court held that the patient has an ongoing condition which is incurable. It is not an emergency which requires immediate medical treatment, therefore, it did not fall within the category of medical emergency envisaged in section 27(3).
This means that a medical emergency refers to a situation where a person is seriously injured or ill because of something sudden or dramatic that happened, which may cause his/her death, but s/he can be saved through immediate medical treatment. For example, where a person was in a serious car accident and will survive if s/he receives emergency medical treatment.
Is emergency medical treatment free in private hospitals?
The short answer is that emergency medical treatment is not free in private hospitals, however, a private hospital is obliged to provide emergency services even if the ability to pay the hospital fees cannot be established. This means that in an emergency situation, the private hospital must stabilise the person and transfer him/her to a public hospital if s/he cannot afford to pay for further treatment or has no medical aid.
However, the hospital may still require the patient to pay for the emergency treatment rendered even if further treatment will be at a public hospital. Private hospitals are usually agreeable to enter into payment arrangements with patients in this regard.
This means that if a person experiences a medical emergency in an area where the medical facility nearest to them is a private one, s/he may approach that facility for assistance even if they do not have immediate access to funds to pay for the services. A person assisting a person in a medical emergency may also approach a private hospital even if it cannot be ascertained whether the patient will be able to pay the medical bill.
Can you be charged by a private hospital even if you did not consent to the emergency medical treatment?
Generally, the National Health Act provides that a person may not be medically treated without his/her consent, however there are circumstances where the person may not be able to provide such consent in the case of possible unconsciousness. The National Health Act recognises this and provides that consent is not required if:
> The patient is unable to give such consent but:
- it is given by someone authorised by the patient in writing;
- it is given by someone authorised in terms of the law;
- consent is given by a spouse or partner;
- consent is given by a parent, grandparent, adult child or sibling if there is no spouse or partner. The specific order in which this category of people can give consent is as set out, meaning the first person with this right is the spouse/partner and then a parent and so on.
> The law or court requires that treatment be given even in the absence of consent.
> There will be serious harm or risk to the patient or public health if s/he is not treated.
> The patient may die or suffer irreparable harm if not treated and s/he has not given any sign to reject the treatment.
Therefore, if a person in a medical emergency is unconscious and s/he is provided with emergency treatment at a private hospital, such a person cannot raise the fact that they did not consent to treatment as a defence against paying the medical bill.
Conclusion
The Constitutional right to emergency medical treatment must be upheld by both private and public hospitals and health facilities. However, this does not mean that private facilities are expected to render the services for free. They are expected to at least stabilise a patient and then transfer him/her to a public health facility for further treatment. Therefore, a private hospital cannot turn a patient needing emergency medical treatment away, even if s/he cannot pay. Such a private hospital can enter into a payment arrangement for the emergency services rendered after the fact.
Did you know… A medical emergency requires that there be a sense of suddenness and that treatment must be necessary to avert serious harm or to save a life.