The impact of COVID-19 on elective/non-emergency surgeries

Even though South African healthcare workers are finally receiving vaccinations against COVID-19, through the administration of the Johnson & Johnson vaccine, experts still warn against the risk of a possible third wave.

As seen during the first and second waves of the coronavirus, the virus has, and continues to, put a strain on the country’s healthcare system. With an increase in the number of patients who need critical care due to the pandemic, COVID-19 patients are being prioritised which potentially leads to the violations of others’ right to healthcare.

In an effort to ensure efficient treatment of the coronavirus, some healthcare institutions have been tempted to reserve beds for COVID-19 patients, leading to patients who opt for ‘non-emergency’ or elective surgeries to be turned away. This places a threat on some rights as enshrined in the Constitution of South Africa, including:

The right to Healthcare Services

The inability to undergo an elective surgery suggests that one is unable to exercise the right to healthcare services, which, in turn, may threaten one’s right to life.

The right to Life

Indefinitely suspending some patients’ non-emergency surgeries may threaten their right to life, as some of these surgeries are critical. For example, being denied a procedure that may, in the long run, prevent a patient from developing cancer.

The right to Human Dignity

Inherent to the right to human dignity is the right to elect what one does with/to one’s body. Preventing the latter may well threaten one’s right to human dignity.

The right to Equality

The Constitution affords everyone the right to equal protection and benefit of the law. This includes the full and equal enjoyment of all rights and freedoms. Denying someone access to healthcare services on the basis that they do not have the coronavirus may well be discriminatory in nature.

Legal recourse available

Constitutional rights may be limited in accordance with section 36 of the Constitution if the limitation is reasonable and justifiable. If a victim can show that any of their rights, as enshrined in the Constitution, have been unjustifiably and/or unreasonably limited as a result of being denied a procedure, the victim may be entitled to compensation if they have suffered harm as a result thereof. The victim may claim for past and future medical expenses, loss of earnings/earning capacity, general damages, or constitutional damages, depending on the heads of damage which may be applicable to the victim’s case. Should the patient lose their life, there may be a claim for loss of support.

This pandemic has compelled us to change the way we do things and limit the enjoyment of our basic human rights. We should, however, be mindful not to exercise means that will unreasonably limit others’ enjoyment of their rights, as this may cause them harm, monetary or otherwise.

Mzwakhe Poswa
Associate | Attorney
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