Paediatric ICUs are a constitutional requirement

Professor Keith Bolton, head of paediatrics at the Rahima Moosa Mother and Child Hospital in Coronationville, is quoted in The Star (“Protector to probe hospital baby shambles”, July 27) as saying that the complaint regarding the shortage of paediatric ICU beds is naive.

He is entitled to his view, but he is unfortunately labouring under a misapprehension as to the scope of the applicable laws.

SA has a justiciable Bill of Rights. It expressly provides that in all matters relating to children, their best interests are paramount. And so they should be. The children of any nation are its future.

All children deserve to be treated in accordance with the law and in a manner that respects and protects their right to equality before the law.

Nobody, including children, may be refused emergency medical treatment in SA. This is laid down unambiguously in the constitution. Every child has the right to basic health-care services. This right is not hedged about with qualifications or caveats. In the more general provisions, applicable to child and adult alike, relating to health care the wording of the Bill of Rights is quite different. Everyone has the right to access to health-care services, but the state is given the “out” that it must take reasonable measures “within its available resources” to achieve the progressive realisation of the right to access to health care.

The tyres and the tar come together on the interpretation of the phrase “within its available resources” when the learned professor observes that “we have so many priorities other than the right to an intensive care bed”. If it is assumed that paediatric ICU facilities are frequently used for children in need of emergency treatment of the life-saving kind, the issue of priorities within hospital budgets does not enter into the equation.

The state is obliged to render emergency treatment to all, and to children in particular, not least on the basis that their best interests must be regarded as “paramount”, as the Bill of Rights puts it.

State hospitals must be capacitated to do so. This should have happened years ago. If they are not, a violation of many rights (life, dignity, psychological integrity of patients, their families and caregivers as well as the right to basic health-care services) occurs and ought to be redressed.

There is simply no budgetary or other excuse for placing our state paediatric health-care facilities in a position in which they routinely have to refuse to render ICU treatment as a consequence of which critically ill children do not have their best interests attended to as a matter of paramount concern to the state.

This is so because the constitution requires that the state must “respect, protect, promote and fulfil” all of the rights in the Bill of Rights, including the rights of children to emergency treatment and to “basic health-care services” – actual services, not merely “access” to them as the general right to health-care services is worded.

The question that may have to be answered in respect of such cases that are not of an “emergency” nature and which pertain to critically ill children in need of ICU treatment, is whether in this day and age in a developmental state as well-off as ours, ICU facilities ought to be regarded as “basic health-care services”.

If all major hospitals in the provinces do have a paediatric ICU, which seems to be the case, then it can cogently be argued that an ICU is part of the “basic health-care services” to which the Bill of Rights refers in guaranteeing this important right to those under the age of 18 years who are living in SA.

It is only when you regard paediatric ICU facilities as something other than “basic” that the question of legally declining access to them for those patients not in an emergency situation becomes relevant. In such a scenario the limitation of “within available resources” would, of course, apply to what would have to be characterised as a “non-basic” ICU facility. But the provision of a non-basic ICU facility for children ought to enjoy the benefit of the paramount regard accorded to the best interests of children in the Bill of Rights.

In this respect, the argument is cogently made that all of the “nice to have” items of expenditure incurred by the state cannot be allowed to take “priority” (to use the professor’s word) over the obligation of the state to afford access to health care to children. It is not a matter of choice on the part of those who administer the budget or manage the state hospitals. It is a matter of the state complying with its constitutional obligations.

Clearly it is very difficult to argue that it is preferable to let the non-emergency cases of children that require an ICU bed to survive end in the inevitable and untimely death of these children while the state is involved in discretionary expenditure on unnecessary, unused, wasteful and luxurious items.

Examples of these abound.

The lack of managerial capacity and expertise to actually spend budgets allocated to health care is also a relevant consideration, as are the effects of corruption, cadre deployment and theft of state assets in hospitals, all of which are illegal but endemic.

It is important that the heads of paediatrics in state hospitals around SA understand the inwardness of all of this. As public servants they are bound to implement the lawful policies of the government of the day in accordance with the values and principles set out in section 195 of the constitution. It is unfortunate that so many doctors in the public service are faced with the awful choice of providing an ICU facility to some young patients (who survive, or at least have a good chance of surviving) and of sending others to a general ward in which their chances of survival are considerably slimmer.

Despite the reservations expressed by Professor Bolton in The Star, it does not have to be like this. Proper understanding of our supreme law, efficient and effective management of state hospitals and the promotion of accountability in the management of the public-health sector can change the present parlous state of affairs. The latter is in evidence in press reports of shocking violations of children’s rights to life and dignity due to non-compliance with what the law requires in respect of children’s health-care services.

Professional and ethical public servants ought to be aware of the scope of the laws applicable, both in relation to the appropriate allocation of resources for ICU facilities for children and in the distinguishing of the various legal niceties described above. An appreciation of their impact on the routine decision-making processes in public hospital services could make a real difference.

Young lives depend upon the state, through its servants, grasping and implementing our new human rights dispensation in the manner envisaged in the Bill of Rights.

Paul Hoffman SC is with the Institute for Accountability (www.ifaisa.org)