The National Health Department has moved to distance itself from an 'unconstitutional' instruction that state hospitals should turn away foreigners unless they pay in full. The circular, which the department has blamed on a junior official, will be withdrawn today, allegedly as a result of questions posed by the Sunday Times and provincial health officials in the Western Cape.

According to the directive from the Gauteng Health Department, issued two weeks ago, foreign nationals would have been forced to pay to use overburdened state hospitals, including for emergency treatment. Gauteng Health Department head Mkhululi Lukhele had already written to hospitals telling them to start charging foreigners.

‘All non-South African citizens should be classified as full-paying patients, except refugees with valid documents who will be classified according to a means test,’ his memo said.

‘The non-South African citizens … must pay for all health care including emergency treatment, confinement (maternity) and basic health services. The cost of services rendered must be paid upfront or on discharge.’

But Precious Matsoso, DG of the National Department of Health, reportedly told the Sunday Times the circular had been issued by a junior official and was ‘not approved’.

‘I didn’t issue it. It is unlawful. It will be withdrawn on Monday,’ she is quoted as saying.

Western Cape Health spokesperson Colleen Smart confirmed her department was ‘in discussions’ with the national department on how to implement the circular, and had asked it to communicate its intentions to ‘relevant organisations and the broader public’.

KZN Health spokesperson Ncumisa Mafunda said her department had also received the instructions to implement a new tariff schedule for ‘non-South Africans’. Pillay said confusion may have been caused by the drafting of new regulations on how hospitals should bill foreigners and locals based on their income.

Constitutional law expert Pierre de Vos said any attempt to treat locals and foreigners differently would be unconstitutional. ‘There is case law in which the Constitutional Court sets out that the rights to health, and not to be discriminated against, applies to everyone in SA,’ he said, according to the Sunday Times report.

‘If they make this distinction (between South Africans and foreigners) they are discriminating and are probably infringing on the right to health care. As it stands, they have just issued a circular that is clearly unconstitutional. If this was to be challenged in court, they (the Health Department] will probably lose.’

Another expert in constitutional law, Phephelaphi Dube, said: ‘Making foreigners pay for public health care will limit the ability of particularly the most vulnerable foreigners to access health care, which in turn will negatively affect other rights such as life and dignity.’

Full Sunday Times report (subscription needed)