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Chapter 9 - HIV and AIDS AND THE LAW

Social support and medical care for people living with HIV/AIDS

If people are unable to support themselves and their dependants they have the right to social assistance. People living with HIV are able to work and support themselves during the first phases of their illness. However, eventually many people with HIV become sick and unable to look after themselves and will require palliative care.  Social support includes the right to health care and medical treatment.

There are different types of social grants available to people living with HIV and Aids or people caring for someone with HIV or Aids:

  • disability grants
  • grants-in-aid
  • foster care grants
  • care dependency grants

The government has said that people living with HIV or AIDS will qualify for social security and assistance such as nutrition, transport, rent, burial costs and school books, where necessary.

See Social grants for adults.

See Social grants for children.

Disability grants

A person who has HIV or an AIDS-related illness will only get a disability grant if they become too sick to work. If that person is unemployed but still fit for work, they will not get a grant. The Department of Social Development will look at the medical report to make sure that the disability will stop the person from working for more than 6 months. Usually, a person will lose their grant if they become healthy enough to work.

See Applying for a grant.

Fast-tracking grants

The government has created a facility for ‘fast-tracking’ grants for people who are urgently in need of social support. The provincial district office is responsible for processing disability grants and for deciding on the policy on ‘fast-tracking’. These policies might differ from province to province. However, these are some of the standard rules about fast-tracking.

Both disability grants and care-dependency grants in respect of children, can be ‘fast-tracked’ for a person who is sick with AIDS. However, only if a person is in stage 4 of Aids will they qualify to have the grant fast-tracked. (See The different stages of HIV) If a grant is to be fast-tracked it means it should take no more than five (5) working days to be processed. The procedure for applying to have a grant fast-tracked is as follows:

  • A prescribed medical form is issued AND stamped by the District Office of the provincial social services department. The person must take this form to a state doctor and not their own private doctor to have it completed. The person either has to take the medical form back to the social services department or the doctor sends it. The grant should then be available within 5 days.

A care-dependency grant will only be paid if a child’s physical condition stops him or her from going to school. The child must be in the full-time care of a care-giver at home.

See Care-dependency grants.

Grants-in-aid

A grant-in-aid is help in the form of nursing care. This grant is given to people who are too sick to take care of themselves at home. When a person applies for a grant-in-aid, they must bring the same forms to the SASSA office as they would for a disability grant.

See Grant-in-Aid.

Other forms of relief

Palliative care

What is palliative care?

Palliative care is an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering. This is achieved by identifying, asssessing and treating pain and other problems that could be physical, psychosocial and spiritual.  Palliative care therefore provides relief from pain and other distressing symptoms, offers a support system to help patients live as actively as possible until death and to help families cope during the patient’s illness, will enhance quality of life.

Right to palliative care

Section 27 of the Constitution gives every person the right of access to health care services. The Health Act aims to promote the health of all people and the South African Patients’ Rights Charter states that ‘Everyone has the right of access to health care services that include: “provision for special needs in the case of … patients in pain… palliative care that is affordable and effective in cases of incurable or terminal illness’. In order to realise these rights government needs to put in place a policy on palliative care so that this can form part of the comprehensive health care system, in the formal and informal health care sectors.

Access to helath care depends on access to doctors, nurses, dentists and pharmacists. In South Africa as well as internationally, there are several different problems confronting human resources within health care services, including:

  • Shortage of professional staff in rural areas and poor urban areas
  • Many health care workers leaving the public health system and going to rich countries where payment and conditions are much better
  • The impact that HIV is havingo n the capacity of the health system by greatly increasing the numbers of people in need of care.

Organisations such as the Hospice Palliative Care Association of South Africa provide palliative care provide palliative care and support. In 2007 South African hospices falling under the HPCA cared for 14% of patients requiring palliative care and the organisation has experienced increasing numbers of patients requring support. It is however difficult for these organisations to find adequate resources to meet the growing needs.

See www.hospicepalliativecaresa.co.za, click on ‘Find a Hospice” to find Hospices in your province.

Obstacles to access to palliative care

While organisations such as HPCA continue to provide palliative care and support there are a number of obstacles that standing in the way of people accessing their right to palliative care. These include:  

  • Lack of access to an appropriate place of care, for example, a hospice, or a home-based care service.
  • Lack of integration of palliative care into govenrment health programmes.
  • Lack of palliative care education and training for doctors and nurses resulting in professionals who are not able to deal with the clinical and emotional issues in caring for patients for whom cure is no longer an option.
  • A shortage of trained palliative care staff.
  • Legislation that only allows doctors to prescribe specific medication that can provide pain relief; this limits access to pain medication for many patients in need as it is home-carers not doctors who are attending to patients in their homes. The South African Nursing Council and civil society are working on regulations that will allow professional nurses to prescribe and administer medication in cases requiring pain management.
  • Geographic challenges in rural areas where the infrastructure is bad, for example, poor road conditions and no public transport make it difficult to reach people in need and to provide the appropriate medication.
  • Fear of the stigma attached to terminal illnesses means families often delay contacting an organisation such as HPCA to treat the sick person at the home, or they prefer to treat the person on their own without support.
  • Language barriers between care-givers and patients.
  • Cultural barriers where some cultures believe that talking about death invites death in, or not acknowledging the illness leads to a delay in accessing palliative care.
  • Religious beliefs where some people believe in the power of prayer and not medical care.
  • Women generally play the nurturing role and men often distance themselves from caring for the very ill as they see this as a women’s task. This puts a burden on female members of the family and limits the responsibility of the male in the home in caring for ill members of family.
  • Child-headed households -  where the child replaces the parent, it places a big responsibility on the child if a member of the household is very ill and this often leads to poor compliance with the medication, and other logistical problems. 

Information for this section was taken from the following publication: ‘ Legal aspects of Palliative Care” developed by the Hospice Palliative Care Association of South Africa (www.hospicepalliativecaresa.co.za, click on ‘Legal Resources’ to download a copy of the manual.

Medical costs - Most public hospitals give medical care for people living with HIV on a sliding scale. This means each person pays according to what they can afford. Pregnant women and children below the age of 6 years can get free medical services. The government is also committed to making ART treatment available to people who are at a certain stage of the illness. This roll-out is happening in most provinces.

Child support - Under the Social Assistance Act the following grants are available for the support of children, including children living with HIV, or whose parents are living with HIV or AIDS :

Anti-retroviral treatment - The government has approved a comprehensive treatment and care plan for HIV and AIDS in all provinces in South Africa. The plan includes providing people with anti-retroviral treatment in government hospitals, clinics and identified service points (one service point per health district throughout South Africa). Ongoing monitoring of patients is required for people on ART treatment. Contact your nearest state health clinic for information on how to access ARV treatment.


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