While the ongoing session of Parliament elicited mirth in some quarters before it had even begun, probably because of previous antics by some of its Members, it nonetheless seems to have produced a critical question in its opening week through Honourable Dithapelo Keorapetse, MP for Selibe Phikwe West. It was on the establishment of a fully-fledged aeromedical service for the country. This falls within the realm of emergency medical provision. The Assistant Minister of Health and Wellness Hon. Sethomo Lelatisitswe, MP for Boteti East, responded in the best manner possible. I suspect that the two compatriots decided to disagree with equanimity.
Emergency medical service is not a matter many citizens concern themselves with unless one is suddenly in the throes of a life-threatening medical emergency, personally or indirectly. It is ironic that this life and death matter did not elicit interest from the public and the media. By raising this moral issue, Hon. Keorapetse certainly “read the room” well when it comes to what should be a topical national consideration.
It has to be apparent, therefore, that the review of our Constitution, when the time comes, should be thorough and include such socio-economic rights as the provision of emergency medical service so that the State takes responsibility for them. Emergency medical service should not be left solely to private enterprise.
The fact that emergency health services are left exclusively to the private sector and that there are no future plans to integrate it into the public health system is a matter of grave concern. Emergency health service is a necessary social service and indeed a constitutional obligation. The observation that human beings are born equal and should, as a right, be treated with dignity and in this case have easy access to emergency health care services, must not be taken lightly.
Therefore, as the exchange between the two legislators indicated, it is vital that Botswana should have a robust emergency medical service. As it is, there are great inequalities in the health sector. These include in access to health services between urban and rural areas, and between the various Districts as well as the quality of health services in the public health system compared to the private health system.
The Government has a duty to ensure that there is an adequate framework in place, including resources, for the delivery of emergency health services for Batswana and other residents. Whether the Government is currently under compulsion to do so from a legal point of view is open to interpretation under our current Constitution. Emergency health service is a basic human right which no citizen and resident of Botswana should be denied.
Of course, we must be realistic. It is necessary to tamper the expectations of those that might be expecting a flawless emergency medical service from the Government. Writing on the subject, Rolf De Groot says: “Not only ‘health needs’ but also ‘available resources’ should be considered. A national health care system may not be able to provide for objective health needs in every respect due to limited availability of financial resources. Financial feasibility is both a precondition for giving effect to the fundamental right to health care and a limitation of that right”.
To this end, a reading of the current Constitution of the Republic of Botswana suggests that a future version should have a robust Bill of Rights similar to or better than that outlined, for example, in the Constitution of the Republic of South Africa,1996 which “enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. What this means is that South Africans, indigent or not, and anyone who is in that country at the time of needing emergency health service cannot be denied such assistance. For us in Botswana, the South Africa Constitution, 1996 is a benchmark. According to Jeffery Rosen in CONVERSATIONS with RBG, the late Associate Justice of the U.S. Supreme Court Ruth Bader Ginsburg “spoke, intently and expansively, about her admiration for the South African Constitution, which she had recommended as the better model than the U.S. Constitution for the drafters of the Egyptian Constitution after the Arab Spring in 2011”.
As a lesson for the future, the Constitution of the Republic of South Africa,1996 states that the Government of that country has a legal duty to “respect, protect, promote and fulfil” people’s rights. On the provision of expansive health care services, at Section 27, it states that:
1. Everyone has the right of access to-
a) Health care services, including reproductive health care,
2. The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
3. No one may be refused emergency medical treatment.”
The Constitution of the Republic of South Africa,1996 puts into perspective health care service, including emergency health care, within the realm of human rights, policy, and law. Whereas in some countries human rights are not recognised in laws and are, therefore, not enforceable by courts, in South Africa its Constitution’s Bill of Rights means that the rights that are listed therein are justiciable. They are legally enforceable if there is a dispute. While policy is not law, it can sometimes be based on law. A policy explains how human rights can be protected in a law. The South African Constitution says that “the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”. Human rights that are set out in the Constitution must guide every law in that country.
Evidently, any emergency health service framework that does not seek to link human rights, the law and policy will be an exercise in futility. A robust Constitution for Botswana will make it plain that access to emergency health care service is essential for people’s right to dignity. Human dignity and the advancement of human rights should be its core values. This is the level we need to reach as a country.
In terms of legislation in South Africa, with the Constitution of the Republic of South Africa,1996 as the overarching legal framework, there is also the National Health Act (No.61 of 2003) which seeks to explain how the health system in that country should work. It states:
2. The objects of this Act are to regulate health and to provide uniformity in respect of health services across the nation by-
(a) establishing a national health system which-
(i) encompasses public and private providers of health services; and
(ii) provides in an equitable manner the population of the Republic with the best possible health services that available resources can afford (emphasis mine)
(b) setting out the rights and duties of health care providers, health workers, health establishments and users; and
(c ) protecting, respecting, promoting, and fulfilling the rights of-
(i) the people of South Africa to the progressive realisation of the constitutional right to access to health care services (emphasis mine), including reproductive health care;
With regard to the rights and duties of users and health care personnel, the South African National Health Act provides as follows:
5. A health care provider, health worker or health establishment may not refuse a person emergency medical treatment.
18. (1) Any person may lay a complaint about the manner in which he or she was treated at a health establishment and have the complaint investigated.
So, improving the Constitution of Botswana alone will not be sufficient. To complement the legislative framework there will have to be strong partnership with other institutions such as for health professions to ensure that doctors and nurses respect the individual rights of their patients. Botswana’s Public Health Act too, which makes no mention of emergency medical services, will require revision.
In other countries, to enforce the provision of emergency health care, individuals and organisations have taken their Governments to court. The desire to take Governments to court is often motivated by the frustration of not being able to receive such service through less antagonistic ways.
As stated above, just like other socio-economic rights, the right to access emergency health care services can be limited, as long as the basis for limiting it is reasonable and justifiable. Similarly, the Constitution of the Republic of South Africa,1996 has Section 36(1), otherwise known as the “limitation clause”, which need not be reproduced here. It is in the context of Section 36(1) that Section 27 of the Constitution of the Republic of South Africa should be appreciated. Section 27 states the following:
4. Everyone has the right of access to-
b. Health care services, including reproductive health care,
5. The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
6. No one may be refused emergency medical treatment.”
The South African Constitution, 1996 states that the Government of that country has a duty to improve people’s access to health care steadily. Therefore, the State should take reasonable legislative and other measures, within its available resources, to achieve “the progressive realisation” of the right of access to health care services.
A thoughtful new Constitution for Botswana will ensure that the right to health care does not mean that any person can demand and receive whatever type of emergency health care they want. It will limit the constitutional guarantee against refusal of emergency treatment to immediately necessary and available remedial treatment in respect of dramatic, sudden events which are of a passing nature, not to ongoing debilitating health conditions. Rationing of resources is integral to health service delivery in the public sector, notwithstanding the fact that this perpetuates inequities between the private and public sectors.
Similarly, Botswana’s Public Health Act would have to be consistent with the revised Constitution on the acknowledgement that certain socio-economic rights will only be progressively realised because of resource constraints. While there might be a clause which says that no health worker can deny a patient emergency medical services, it will not be absolute as it would be dictated to by various factors. Therefore, a health worker would not automatically face punishment in the event that a patient complains that he or she was not provided with emergency medical services.
It may come as a surprise that even the new Constitution of the Republic of Zimbabwe, including its Bill of Rights covering amongst others access to emergency medical service, is progressive than that of Botswana, despite all else.
In conclusion, therefore, Government need not be reticent about acting on Hon. Keorapetse’s suggestion. It might even also turn out to be operationally and economically efficient. Government has an affirmative duty to take charge of emergency medical service instead of adopting a blind spot on the matter. When the opportunity arises, Batswana must develop a ground breaking Constitution which will include aspirational socio-economic rights such as on emergency medical care.
*He writes in his personal capacity.