Understanding Health Sector Transformation within South Africas Constitutional Framework

1
Understanding Health Sector Transformation within
South Africas Constitutional Framework

• Seminar on Health Sector Transformation
• 10th February 2004
• AIDS Law Project, Johannesburg
• Jonathan Berger
• Law and Treatment Access Unit
• AIDS Law Project
• Centre for Applied Legal Studies
• University of the Witwatersrand

2
Overview of presentation

• Defining the roles of Parliament and provincial
  legislatures
• Legislating on health matters
• Delegating discretionary powers
• Health and constitutional rights
• Health rights and corresponding state obligations
• Respect, protect, promote and fulfil rights
• The right of access to health care services
• Soobramoney, Grootboom and TAC
• Clarifying the key issues and findings
• Lessons for health sector transformation

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Defining the roles of Parliament and provincial
legislatures legislating on health matters

• Concurrent legislative competences
• National Assembly has the power to pass
  legislation with regard to a matter within a
  functional area listed in Schedule 4
• Provincial legislatures have the power to pass
  legislation with regard to any matter within
  a functional area listed in Schedule 4
• Resolution of conflicts
• To prevail, national legislation must apply
  uniformly with regard to the country as a
  whole and
• Must meet one of three conditions

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Defining the roles of Parliament and provincial
legislatures legislating on health matters

• Conditions for national legislation to prevail
• Matter cannot be regulated effectively by
  provinces acting individually or
• Matter requires national uniformity to be dealt
  with effectively, through norms and standards,
  frameworks or national policies or
• National legislation is necessary to
• Maintain national security or economic unity or
• Promote equal opportunity or equal access to
  government servicesor
• Protect the common market or the environment or
• Promote economic activities between provinces.

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Defining the roles of Parliament and provincial
legislatures delegating discretionary powers

• What must a legislature do when conferring
  discretionary powers on officials?
• Legislature must ensure that the empowering act
  limits the risk of an unconstitutional exercise
  of such powers
• Where does this obligation come from?
• The fact that the exercise of a discretionary
  power may subsequently be successfully challenged
  on administrative grounds does not relieve the
  Legislature of its constitutional obligations to
  promote, protect and fulfil the rights entrenched
  in the Bill of Rights.
• Justice Kate ORegan in Dawood v Minister of Home
  Affairs 2000 (3) SA 936 (CC) at paragraph 63

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Health and constitutional rights health rights

• Life, dignity, privacy and equality (includes a
  prohibition against unfair discrimination)
• Freedom security of the person (includes bodily
  psychological integrity)
• Non-harmful environment
• Education
• Prisoners and childrens rights
• Access to sufficient food water, social
  security and housing
• Access to health care services

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Health and constitutional rights state
obligations

• General positive obligations (all rights)
• The state must respect, protect, promote and
  fulfil the rights in the Bill of Rights
• Specific positive obligations (some rights)
• Everyone has the right to have their dignity
  respected and protected
• Everyone has the right to have the environment
  protected through reasonable legislative and
  other measures that prevent pollution and
  ecological degradation .
• Everyone has the right to further education,
  which the state, through reasonable measures,
  must make progressively available and accessible

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Health and constitutional rights respect,
protect, promote and fulfil

• Respect
• Do not limit rights unreasonably or unjustifiably
• Protect
• Create a legal framework to prevent third parties
  from limiting rights unreasonably or
  unjustifiably
• Promote
• Create an enabling legal framework so that
  individuals will be able to realise their rights
  through their own action
• Fulfil
• Create the conditions in which the rights can be
  claimed, by providing positive assistance, a
  benefit or a service

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Health and constitutional rights access to
health care services

• Respect and protect (s 7(2))
• State must not limit rights unreasonably or
  unjustifiably, by preventing people from
  accessing existing health care services without
  good reason
• Create a legal framework to prevent third parties
  from limiting rights unreasonably and
  unjustifiably
• Promote and fulfil (s 7(2)), as modified by
  express obligations in s 27(2)
• Take reasonable legislative and other measures
• Within available resources
• To achieve progressive realisation

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Health and constitutional rights Soobramoney v
Minister of Health (KZN)

• Policy under attack access to renal dialysis
• Guidelines developed to determine who qualifies
• Constitutional basis for decision
• Right of access to health care services
• Emergency treatment
• Court rules against Soobramoney
• Benefit more by using limited resources to keep
  people with chronic renal failure alive pending
  kidney transplant
• There will be times when managing limited
  resources requires the state to adopt a
  holistic approach to the larger needs of society
  rather than to focus on the specific needs of
  particular individuals within society.
• Guidelines applied rationally and fairly

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Health and constitutional rights lessons from
Soobramoney

• Rights may be infringed by implementation
• Policies and frameworks are only a starting point
• Implementation must be rational, reasonable and
  fair
• Invoking the available resources argument
• Unwillingness to tackle inadequacy of health
  budgets?
• Available to whom? The country? The province? A
  particular hospital? The private health care
  sector?
• The flip-side of the resources argument
• It is unreasonable to allocate a disproportionate
  share of the budget to a relatively small need,
  if this results in limiting access to health care
  services more broadly
• Private health subsidies at expense of public
  provision?

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Health and constitutional rights President of
the RSA v Grootboom

• Policy under attack housing and homelessness
• Failure to make provision for people who had no
  access to land and no roof over their heads and
  were living in intolerable conditions
• Constitutional basis for decision
• Right of access to adequate housing
• Court rules against government
• State must create the conditions for access to
  adequate housing for people at all economic
  levels of our society
• State not required to provide houses for
  allothers must be enabled by legislative and
  other measures to provide

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Health and constitutional rights lessons from
Grootboom

• Right not limited to public provision
• For those who can afford to pay for adequate
  housing, primary obligation lies in unlocking the
  system
• Ensure access to housing stock
• Create legislative framework to facilitate
  self-built houses
• Ensure access to finance
• Poor are particularly vulnerable
• Needs of poor require special attention
• Ensuring access for the poor may have a negative
  impact on others a win-win solution not always
  possible
• A reasonable plan to deal with a public problem

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Health and constitutional rights implications
of a reasonable plan (1)

• Flexible plan dealing with emergency, short,
  medium and long term needs
• Must make existing health system work at same
  time as engage in transformation of the health
  sector
• Need to put in place a regulatory framework that
  anticipates future health needs
• Insufficient to access medicines for a particular
  programme need access to essential medicines on
  a sustainable basis
• Appropriate financial and human resources
• Indirect way of challenging health budgeting
• Plan for retention and training of health care
  workers

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Health and constitutional rights implications
of a reasonable plan (2)

• National government responsible for ensuring
  adequacy of laws, policies and programmes
• Goal is to progressively realise right of access
  to health care services who provides is not as
  important
• Make use of residual private sector capacity?
• Publicly funded private provision of health
  services?
• Need to eliminate inefficiencies and profiteering
  in private sector if access to health care
  services limited
• Clear allocation of responsibilities and tasks
• Implicit in obligation to allocate
  responsibilities and tasks is duty to monitor and
  hold implementers to account

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Health and constitutional rights Minister of
Health v TAC

• Policy under attack PMTCT of HIV
• Confining supply of drug to two pilot sites per
  province
• Existence and/or reasonableness of PMTCT
  programme
• Constitutional basis for decision
• Right of access to health care services
• Court rules against government
• Where testing and counseling facilities were
  available, nevirapine could (and should) have
  been administered
• Governments plan to deal with PMTCT was
  unreasonable and inflexible

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Health and constitutional rights lessons from
TAC

• Prioritise major public health needs
• HIV/AIDS is but one of many illnesses that
  require attention. It is, however, the greatest
  threat to public health in our country.
• Emergency, short, medium and long term plans are
  complementary
• Permit health facilities with capacity to
  prescribe nevirapine where medically indicated
• Provide drug to health facilities with capacity
  to prescribe
• Develop capacity by training counselors on PMTCT
• Extend testing and counseling facilities

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Contact details

• Law Treatment Access Unit
• AIDS Law Project
• Centre for Applied Legal Studies
• University of the Witwatersrand
• bergerj_at_law.wits.ac.za
• [phone] (t)
• [phone] (f)
• www.alp.org.za