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The "Right to Health
Care" in South Africa.
Up until a few decades ago health policy experts and proponents of universal health care in the USA would frequently remind their audiences that there were only two industrialized nations in the world that did not secure for their people universal health care. Those were the USA and apartheid South Africa. The intention was, of course, to embarass US government officials all the more by being classed with a state so patently racist and unjust with regards to all rights and democracy. How the more embarassing it should be now that South Africa has surpassed the USA so in the high regard for human life.
Below are some edited documents made available by the South African Human Rights Commission.
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RIGHT TO HEALTH CARE
INTRODUCTION
The right to health is fundamental to the physical and mental well-being of all individuals and is a necessary condition for the exercise of other human rights1 including the pursuit of an adequate standard of living. The right to health care services is provided for in three sections of the South African Constitution. These provide for access to health care services including reproductive health and emergency services; basic health care for children, and medical services for detained persons and prisoners.REF-2Universal access is provided for in section 27(1)(a) which states that "Everyone has the right to have access to health care services, including reproductive health care..." Section 27(1)(b) provides for the State to " take reasonable legislative and other measures, within its available resources to achieve the progressive realisation of the right." According to the Limburg Principles, progressive realisation does not imply that the state can defer indefinitely, efforts for the full realisation of the right. On the contrary, state parties are to "move as expeditiously as possible towards the full realisation of the right " and are required to take immediate steps to provide minimum core entitlements.REF-3 Section 27(3) states that no one can be denied emergency medical treatment. Section 28(1)(c) provides for "basic health care services" for children, while section 35(2)(e) provides for "adequate medical treatment" for detainees and prisoners at the State's expense.
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the "enjoyment of the highest attainable standard of physical and mental health conducive to living a life of dignity".REF-4 This means that health care facilities, goods and services have to be available in sufficient quantity; must be physically and economically accessible to everyone, must be ethically and culturally acceptable, and must be of a medically appropriate quality. REF-5
According to section 7(2) of the ConstitutionREF-6 the State is obliged to respect, protect, promote and fulfil all the rights in the Bill of Rights). In the case of the right to health, these fourfold obligations are defined in General Comment No.147 and include the following: The obligation to respect the right, obliges the State to refrain from denying or limiting access to health care services to any one. These should be available to all on a non-discriminatory basis. The obligation to protect include, inter alia, adopting legislation and other measures to ensure equal access to health care facilities provided by third parties; to ensure that privatisation does not constitute a threat to the availability, acceptability and quality of services provided; and to control the marketing of medicines by third parties. The obligation to promote requires the State to disseminate appropriate information; foster research and support people to make informed choices. The obligation to fulfil requires that the State facilitates and implements legislative and other measures in recognition of the right to health and adopts a national health policy with detailed plans on how to realise the right. The State is also obliged to provide the right for people in disaster situations or in dire need when an individual or group is unable, for reasons beyond their control, to realise that right themselves with the means at their disposal. REF-8
Since 1994 there have been several court cases which have served to add to the normative content of the right to health care. These have thrown light on the concepts of "available resources" and "reasonable measures" in terms of section 27 (1) (b) of the Constitution. In the Soobramoney case REF-9 the Constitutional Court opined that the scarcity of resources available to the State were constraints to the enjoyment of the right by the appellants, given the socio-historical context of South Africa. In the Grootboom case,REF-10 the Constitutional Court defined the parameters of what constitutes "reasonable measures". In addition to these, it concluded that measures that do not include meeting the needs of the most vulnerable groups in society, were unreasonable. Furthermore, it was stated that implementation plans that failed to be "reasonable" would not meet the State's obligations in terms of section 7(2) of the Constitution. Another important case dealt with the prevention of mother to child transmission of HIV in which the Treatment Action Campaign (TAC) requested that the anti-retroviral drug, Nevirapine be made available to all HIV positive pregnant women in the public health sector. In this case the Constitutional Court upheld the High Court order to make Nevirapine available to all HIV positive pregnant women.REF-11 This judgement is of great significance given the high prevalence of HIV/AIDS in the country and the growing number of AIDS orphans.
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REFERENCES
2 Sections 27 (1) (a), (b) &(c); Section 28 (1) (c) and Section 35 (2) (e) of the Constitution of the
Republic of South Africa, Act 108 of 1996.
3 Limburg Principles on the Implementation of the International Covenant of Economic, Social and
Cultural Rights Para 21 pp 63-78 in Economic, Social and Cultural Rights: A Compilation of Essential
Documents International Commission of Jurists, 1977.
4 The steps to be taken by State Parties to the ICESCR to achieve the full realization of the right to
health include those necessary for the provision of the reduction of the still-birth rate and of infant
mortality and for the healthy development of the child; the improvement of all aspects of
environmental and industrial health; the prevention, treatment and control of epidemics: endemic,
occupational and other diseases; and the creation of conditions which would assure to all, medical
services and medical attention in the event of sickness.
5 General Comment No. 14 of Committee of ESCR, 2000, para 12.
6 Section 27 (2) of the Constitution of the Republic of South Africa, Act 108 of 1996.
Right to Health Period: April 2000 - March 2002
8 General Comment No. 14 of UN Committee of ESCR, 2000, para 34-37.
9 See Soobramoney v Minister of Health, Kwa-Zulu Natal, 1997 (12) BCLR 1696 (CC).
10 Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR
1169 (CC)
11 See Chapter 1 of this Report for a discussion of the Grootboom and TAC cases.
Right to Health Period: April 2000 - March 2002
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Visit the webpage for the SA HRC statement on the Right to Health Care CLICK HERE (Acrobat)
Visit the website for the South African Human Rights Commission CLICK HERE |
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