IN ANCIENT Sparta, it was the custom to bring all newborn babies, freshly washed in wine, before the council of elders known as the Gerousia. If their examination of the infant revealed some defect, deformity or puniness, then the infant was cast into a chasm on Mount Taygetus in a primitive act of eugenics. In his 2001 work, Spartan Reflections, the historian Paul Cartledge suggests this practice was not confined to Sparta in ancient times.

A practice of this kind is unthinkable and would be unconscionable in a modern constitutional democracy of the kind we have in South Africa. The rule of law and our justiciable Bill of Rights see to that. The state is obliged to respect, protect, promote and fulfil the rights guaranteed to all. These rights include the rights to life, to human dignity and to equality before the law. Psychological integrity and freedom from violence are also ours. We guarantee access to healthcare, within the available resources of the state, to all.

No one may be refused emergency medical treatment. Every child has the right to basic healthcare services and it is expressly a part of our dispensation that "a child's best interests are of paramount importance in every matter concerning the child".

These rights are not hedged with qualifications about the "available resources" of the state. They are there for the asking. In constitutional theory, anyway.

In practice, things are different. An Avusa tabloid filled its front page and more with a story headed: "Doctors: We must choose who lives", in which harrowing details were laid bare with regard to the lack of paediatric intensive care unit (ICU) facilities in state hospitals around the country.

It appears that in an unexpected revival of Spartan practices, the unfortunate doctors now have a modern-day role not unlike that of the Gerousia of old. The demand for paediatric ICU facilities outstrips the supply of beds. Sick children are sent to general wards, almost inevitably to die, as was the case in the chasm on Mount Taygetus. The lucky ones chosen by the doctor on duty are admitted to the ICU facilities in their emergency condition and often recover.

If this state of affairs has been accurately reported, and there is no reason to doubt that this is the case, the situation is grossly improper, unconstitutional and illegal. It gives rise to life-threatening prejudice to seriously ill infants who, through no fault of their own, get sent to the general ward instead of the ICU when it is plain that, were there sufficient ICU facilities, they would be accommodated in the ICU.

State hospitals are meant to be run efficiently, effectively and accountably. These are the values the constitution prescribes. "A high standard of professional ethics must be promoted and maintained," says section 195(1)(a) of the constitution.

The interview that journalist Chris Barron was given by the minister of health, as published in the Sunday Times of July 8, suggests that the standards of accountability, transparency and proper human resource management in his department are sorely lacking in constitutional compliance.

On the latter aspect, the Institute for Accountability in Southern Africa (Ifaisa) endeavoured to engage with the minister shortly after his appointment on the thorny issue of the management of professionals in the public sector. This, in the era of cadre deployment, is a quagmire. No more than a polite and prompt acknowledgment of receipt was forthcoming. Similar entreaties to the parliamentary committee on service delivery also fell on deaf ears.

Now a complaint has been lodged with the office of the public protector concerning the state of affairs that apparently exists in the health service.

In making the complaint, Ifaisa has been mindful of the Constitutional Court's controversial decision in the Thiagraj Soobramoney case in 1998.

In that matter, a seriously ill but aged patient was suffering from chronic renal failure and required dialysis. There were not enough state-sponsored dialysis machines to go around.

The court found on the facts that this was not an emergency situation that called for immediate remedial treatment and pointed to the "within available resources" limitation in the Bill of Rights.

The position of critically ill infants is distinguishable from that of Soobramoney, who was sent home empty-handed by the court. First, there will be many of the infants who are in an emergency situation as a matter of fact and, second, as a matter of law, the "within available resources" limitation does not apply to the provision of basic health services to infants.

Whether ICU facilities are regarded as "basic", the fact remains that according to section 27(3) of the Bill of Rights, "no one may be refused emergency medical treatment". This includes infants and has no "within available resources" limitation.

It is certainly arguable that in a developmental state, which regards the best interests of children as paramount, the provision of sufficient ICU facilities for children to cope with anticipatable demand ought to be regarded as "basic". This would relieve medical staff of the Gerousian role they are expected to play by sending emergency cases to general wards when it is reasonable to expect them to receive ICU treatment.

What constitutes an emergency is a matter of interpretation for lawyers and doctors - for the children concerned, it is a matter of life or death.

The choices foisted upon the doctors concerned are ethically challenging and wholly unnecessary in a state whose resources are not so limited as to disable it from providing ICU facilities and resources in full measure.

The public protector has been requested to prioritise the complaint so that urgent attention can be given to the apparent lack of accountability in evidence.

She will no doubt begin by assembling the facts from the hard-pressed doctors whose names are already in the public domain.

Then she will take the matter up with the managers who are meant to be in charge of the provision of resources in the hospitals. There she may find that the work already done by the complainant in 2010 will be of use to her investigation.

Finally, the public protector may have occasion to ponder what "within available resources" really means in a society in which the rule is that all of the rights in the Bill of Rights have to be "respected, protected, promoted and fulfilled".

There is an argument that all of our "nice to haves", such as armaments in peacetime, executive jets, fancy motor cars, World Cup stadiums, Eskom "family fun days" and bloated salaries should not be allowed to take precedence over the effective and efficient delivery of the socioeconomic rights that are set out in the constitution but are nowhere to be seen in real life almost a generation after the liberation of the people of South Africa.

The report of the public protector is awaited with interest.

. Hoffman is with Ifaisa.