Doctors in Lesotho have won a major constitutional battle. They brought a case against the country’s minister of health, the minister of finance and the minister of public service, among others, claiming that their constitutional rights had been infringed in a number of ways. In particular they said they were not being provided with proper personal protective equipment (PPE). They were also unhappy because long-established supplementary payments to them had been cut off by government, all in the name of shortage of funds. On both issues the court has declared their constitutional rights were violated, and the judges also ordered the government parties to provide doctors and health workers with PPE ‘within a reasonable time’.
There’s one thing any reader of this judgment will ask – who would want to work as a doctor in Lesotho right now? And the answer must be that very few outsiders would put their hands up to serve there, under present conditions.
Last year, the Lesotho Medical Association and an individual doctor, Makhele Moseme, approached the high court, sitting to hear constitutional issues, to complain that they were in fact subjected to conditions amount to slave labour. This week the court delivered its decision, disagreeing that the doctors’ work conditions were tantamount to ‘forced labour’, and saying that the medics were ‘free to disengage from the public service if they are dissatisfied with their conditions of work’. While their long hours of work may be undesirable this ‘cannot be elevated to the level’ of treatment required by the definition of forced labour or slavery, in particular ‘that it is involuntary’.
But the court was more sympathetic to the problem about the ‘call allowances’, paid to doctors for decades, but suddenly cut by the government with no warning or consultation.
Citing ‘budgetary constraints’, the government said its intention in cutting the allowances was to cut costs. The judges commented: ‘simply to turn off the tap … citing budgetary constraints, does not count as of “sufficient importance” to override the doctors’ property rights or interest.’
The allowances augmented the doctors’ salary and were an essential part of their livelihood. ‘The inescapable conclusion is that the limitation of the doctors’ property right is unconstitutional.’
When the doctors complained that they did not receive personal protective equipment to use in the government’s hospitals, the principal secretary of the Ministry of Health responded, ‘Government has hospital facilities in place and doctors with experience are employed to execute the work. In essence, doctors, not the government, are entrusted to exhibit their expertise and save lives in their hands and care. It is our legal stance that the government has spent, procured and is more than willing to improve the health facilities but for lack of funds challenges are serious experienced.’ This response was inadequate, said the judges, and did not answer pertinently the doctors’ claim that ‘due to lack of safety kits doctors often had to handle patients infected with highly communicable diseases with bare hands.’ Instead the government responded with ‘generalisations, denials and challenges [to the doctors] to prove their case.’
The state’s obligations were procedural and substantive and the state was required to have systems in place to protect life. The government had not denied its failure to provide doctors with PPE.
It was a personal decision whether to become a doctor, but ‘once a person undertakes this work, she or he is doing so at the behest of the public; he or she is not on a frolic of her own, deliberately endangering his or her life.’
‘Although the medical doctors’ routine job is inherently risky and carries with it a potential for loss of life from infection with dead diseases, however they cannot, constitutionally, be left at their own devices by the state.’
It was a case where the state had to take preventive operational measures to protect the lives potentially endangered by the work environment. ‘From the papers filed it is clear that the government is fully aware of the plight of doctors but has not addressed it meaningfully, but instead cries budgetary constraints.’
‘…[T]he threat posed to the doctors’ lives is continuing and omnipresent. Given the nature of the doctors’ work, potential loss of life looms …. Procrastination and apparent lack of political will on the part of government in addressing these grave concerns is disturbing to say the least.’
It would be appropriate to make a declaration of constitutional infringement in relation to both issues, but to couple this with an order directing the government to provide public health doctors with safety equipment ‘in compliance with their constitutional obligations’.
While the doctors may well be disappointed with the time frame given by the court – ‘within a reasonable time’ – the clear language of the court’s decision made the outcome a cause for celebration, according to members of the association.
Contacted to comment on the outcome, Dr Manethi Leponesa, secretary general of the Lesotho Medical Association said that the court's failure to set an immediate date for providing doctors with PPE was a great disappointment. She said that where doctors were provided with masks, these were clearly marked as unsuitable for use with infectious diseases. Her organisation, which represents abou 250 of the 300 doctors in Lesotho, was also deeply concerned by the lack of equipment in the country's hospitals. There were no x-ray machines, so no x-rays could be taken of patients whose lungs were compromised by Covid-19 or any other cause. There was no oxgygen or respirators, it was not possible to do a full blood count and 'the ICU facilities are not functioning', she said.
On the 'allowances' paid to the doctors, she pointed out that this payment of R600 for a five night stint had started in 1983 when it was exactly the same amount. 'It doesn't make sense that people are being paid the same today as in 1983. What we are earning is not in line with the value of our work. And since last August we have not even been paid that amount.'