As a member state of the United Nations (UN), South Africa participates in the commemoration of this day as a reminder of its international obligations in terms of drawing attention to health issues. The International Covenant on Economic, Social and Cultural Rights (ICESCR), the African Charter on the Rights and Welfare of the Child (ACRWC) and the Convention on the Right of People with Disabilities (CRPD) are a few examples of the international agreements to which South Africa is party. These instruments require state parties to take reasonable measures with the aim of progressively realising the rights contained within their available resources.

The Constitution compliments South Africa’s international obligations in guaranteeing in its Bill of Rights the right to have access to healthcare services, sufficient food and water. The state is charged with taking reasonable legislative and other steps within its available resources, to progressively realise these rights. The Constitution also stipulates that no one may be refused emergency medical treatment. The right to healthcare is a socio-economic right that places a positive obligation on the state to realise such rights. This is in comparison to civil and political rights which are, in principle, negative rights – requiring the state to refrain from acting in a particular manner. The latter are far easier to realise. The positive obligation in the case of socio-economic rights is qualified by the notion of “progressive realisation”. Case law emanating from the Constitutional Court gives greater clarity on the state’s positive obligation to provide healthcare within the constitutional framework.

Soobramoney v Minister of Health (KwaZulu-Natal) dealt with the right of a terminally ill individual to receive dialysis at a state hospital. The individual was turned away on the basis that his situation could not be classified as an emergency. In challenging this decision, the Constitutional Court held that state obligations in terms of access to healthcare depend on the available resources as highlighted in the Constitution. The Court said that it could not interfere with decisions taken in good faith by political organs and medical authorities as to budget allocation and prioritising. This case is significant as it was the first time that the Constitutional Court was faced with the question of what constitutes “progressive realisation” of rights in relation to healthcare. The Court held that the only way to challenge decisions on socio-economic rights is if the policies were unreasonable and executed unfairly. As such, the state is obliged to always act rationally and in good faith when making decisions that impact socio-economic rights. 

Nonetheless, the state of the healthcare system in South Africa falls significantly short of both the country’s international and constitutional obligations. As has been widely reported in the media, the state of the South African health system is dire and it is largely failing its constitutional mandate to provide and ensure adequate healthcare for everyone. Access to healthcare remains problematic for many South Africans. Reports of corruption, poor infrastructure, shortages of medical equipment and drugs, as well as lack of competent staff, make it impossible to deliver the appropriate standard of medical care to the public. In the recent case of Vuyisile Eunice Lushaba v The MEC for Health, Gauteng, the plaintiff was neglected for two hours during the birth of her son at a Johannesburg Hospital. As a result, her son was born with spastic quadriplegic cerebral palsy and can neither walk nor sit. This is but one example of the negligence that frequently occurs in state-run facilities. Furthermore, such cases show that the constitutional obligation of committed, accountable and responsive public service, as is required by section 195 of the Constitution, is not being met.

The National Healthcare Facilities Baseline Audit reports abysmal standards of cleanliness and staff attitudes, with no province scoring above 70% in the evaluation of all provinces. Other reports state that at least 90% of all South Africans have access to water. Whilst this may be true, it is unclear whether this water is safe for consumption or general use. The same is true for water in health institutions across the country. Multiple cases of contaminated water, water cuts, and lack of infrastructure related to water have been reported across the country, and health institutions are not immune.

The health sector is also highly inequitable in that only a few individuals have access to well-financed and resourced health services. The private healthcare system caters for less than 25% of the population, whilst the rest is left to the poorly managed and corruption-rife public healthcare system.

In a laudable attempt to meet its constitutional (as well as international) obligations in 2011, the Department of Health (DOH) released the Green Paper on the National Health Insurance (NHI), which is a compulsory medical scheme for all South Africans earning an income. Under this system all citizens will have free cover for healthcare. The NHI will be funded through contributions from all employed South Africans and through the payment of additional taxes. It must be noted that this system will not replace private medical insurance (those who are willing and able to access it will continue to do so). Essentially the aim of the NHI is to make healthcare accessible and affordable to all, in line with the Constitution. To date however, the DOH has yet to publish the follow-up White Paper on this initiative. Statements by the DOH deny a delay and point out that the NHI was intended to be rolled out over a 15-year period and that this period is not yet complete.The DOH also says that before the NHI can be rolled out, the existing healthcare system’s infrastructure, human resources, as well as the financial and procurement areas, must be strengthened, as there must be a firm foundation upon which to build the NHI.

In this year’s budget speech, the Minister of Finance stated that the DOH is in the fourth year of the phased 15-year rollout of NHI and that pilot activities are under way in 11 districts. The Minister further stated that the NHI White Paper should be tabled by the end of 2015. One can only hope that this paper will be more informative in terms of the services that will be available to patients; the cost of contributions, as well as feedback from the pilot programmes currently being implemented.

However, given the current situation in terms of state run healthcare institutions, one must question the likelihood of a successful and timeous rollout of the NHI. Addressing the current challenges is no small feat and may very well take longer than the planned 15-year period. What interim plans does government have in place should it fail to reach its target?

Despite a substantial budget allocation of R146 billion for the DOH, there appears to be very little impact on the challenges faced by the Department in realising its mandate of ensuring access to healthcare for everyone in South Africa. As we commemorate World Health Day and celebrate the rights afforded in the Constitution, it is apparent that much has been done in terms of sound healthcare policies. However, much more needs to be done to actually implement those policies to the benefit of everyone in South Africa. 

 By Rebecca Sibanda: Intern, Centre for Constitutional Rights

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