Can Rights Cure?

Marius Pieterse

Description

Post-apartheid South Africa has yielded enlightened judicial decisions in contrast to the limited interpretation of human rights in Ireland. The value of human dignity with its central position in international law underpins both countries’ Constitutions, but has left a more striking mark in South Africa. There it has impacted significantly on punishment for crimes, family life, children’s rights, defamation, sexual violence investigations, substantive equality and socio-economic rights. Practical guidance can be gleaned from South Africa to revitalise Irish jurisprudence. While its focus is on South Africa and Ireland, this book draws on the experience of many countries and regions.About the editor:Marius Pieterse is Professor of Law, University of the Witwatersrand, Johannesburg.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2014
• Nombre de lectures: 0
• EAN13: 9781920538279
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

CAN RIGHTS CURE? The impact of human rights litigation on South Africa’s health system

Marius Pieterse Professor of Law, University of the Witwatersrand

2014

Can rights cure? The impact of human rights litigation on South Africa’s health system

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-27-9

© 2014

TABLE OF CONTENTS

1 Rights, health, courts and transformation 1 11.1 Introduction 1.2 The state of the South African health system 5 1.3 Content and dimensions of the right to health 10 1.3.1 International law 10 1.3.2 South African constitutional law 16 Health-related freedoms The right to equality Rights to non-medicinal determinants of health Rights to health care services 1.4 Justiciability of the right to health 24 1.5 Conclusion: Aims and objectives of this book 31 Rights through legislation/legislation through rights: 2 Health law and policy in the Constitutional era 35 2.1 Introduction 35 2.2 Health care legislation in post-democracy South Africa and its impact on access to care 38 2.2.1 The Choice on Termination of Pregnancy Act 92 of 1996 38 2.2.2 The National Health Act 61 of 2003 42 2.2.3 The Medical Schemes Act 131 of 1998 47 2.2.4 Overview: Transformation through health legislation and policy? 49 2.3 Assessing legislative and executive compliance with constitutional health rights: The Constitutional Court's approach 51 2.4 Conclusion 56 Health rights litigation, individual entitlements and 3 bureaucratic impact 59 3.1 Introduction 59 3.2 The health rights judgments and their aftermaths 62 3.2.1 Van Biljon v Minister of Correctional Services 62 3.2.2Soobramoney v Minister of Health (KwaZulu-Natal) 63 3.2.3Minister of Health v Treatment Action Campaign 65 3.2.4 Minister of Health v New Clicks South Africa 70 3.2.5 N v Government of the Republic of South Africa 73 3.2.6Law Society of South Africa v Minister of Transport 75 3.2.7Lee v Minister of Correctional Services 77 3.3 The impact of the health rights judgments on individual and collective struggles for access to health care services 79 3.4 The impact of rights-vindication on health system reform 84 3.5 Conclusion 89

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Rights and resources: The limits of justiciability? 4 4.1 Introduction 4.2 Rights discourse, resource allocation and the unmasking of tragic choices 4.3 Rights as directives for resource allocation and rationing 4.3.1 Possible normative directives embodied by health-related rights in the South African Constitution 4.3.2 Institutional obstacles to providing normative resource-related directives through the courts 4.4 Assessing the impact of South African human rights jurisprudence on health budgeting and financing 4.5 Rights and contemporary health financing policy debates 4.6 Conclusion Rights, horizontality and regulation: facing the 5 public/private divide 5.1 Introduction 5.2 Rights as impetus for private health sector regulation 5.3 Rights as parameters for private health sector regulation 5.3.1 Health care practitioners' freedom of occupational choice 5.3.2 Patients’ right of access to care 5.4 Beyond regulation: Towards enforcing human rights obligations in the private health sector 5.5 Conclusion

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Rights as restraints?: Balancing individual liberties 6 and public health 151 6.1 Introduction 151 6.2 Assessing the human rights impact of public health policies 156 6.3 Public health and the South African Bill of Rights 159 6.4 Rights, limitations and the prevention of multi-drug resistant (MDR) and extreme drug resistant (XDR) tuberculosis 167 6.4.1 Adopting a human-rights framework to current laws, policies and practices aimed at MDR and XDR-TB prevention 167 6.4.2 How not to apply a human-rights framework: Minister of Health, Western Cape v Goliath 171 6.5 Conclusion 174

BIBLIOGRAPHY

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R IGHTS , HEALTH , COURTSAND TRANSFORMATION 1 HAPTER C

1.1

Introduction

The enforcement of a claim – an entitlement to health facilities, goods, and services as an asset of citizenship – itself has an effect on a claimant's individual sense of identity, as well as on the broader social meaning of health 1 and, ultimately, our understanding of health systems.

Rights are powerful and empowering. They enable individuals and marginalised groups within society to assert themselves against powerful entities in the public and private spheres and, thereby, to draw societal attention to their plight. Where the objects of rights include social goods or services, the rights further recast claims for access to such goods or services 2 as moral and legal imperatives, rather than ‘mere’ cries for help. As such, rights at once impact on the manner in which society views delivery of social goods and services and demand accountability from those 3 responsible for this delivery.

Following from this, rights necessarily impact upon the structures and systems through which social goods and services are delivered, especially where the rights are legally enforceable against the architects and drivers of such systems and structures. Rights simultaneously present substantive

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AE Yamin ‘Power, suffering and courts: Reflections on promoting health rights through judicialization’ in AE Yamin & S Gloppen (eds)Litigating health rights: Can courts bring more justice to health?(2011) 333 336-337. See PJ WiIliams ‘Alchemical notes: Reconstructing ideals from deconstructed rights’ (1987) 22Harvard Civil Rights Civil Liberties Law Review401 411-413, 416. I engage the socio-legal literature on the utility of rights discourse in more detail in M Pieterse ‘Eating socio-economic rights: The usefulness of rights talk in alleviating social hardship revisited’ (2007) 29Human Rights Quarterly 796 801-803. See also the authorities cited there. See JC Mubangizi & BK Twinomugisha ‘The right to health care in the specific context of access to HIV/AIDS medicines: What can South Africa and Uganda learn from each other?’ (2010) 10African Human Rights Law Journal105 128-129; JP Ruger ‘Towards a theory of a right to health: Capability and incompletely theorized agreements’ (2006) 18Yale Journal of Law & the Humanities273 278.

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2Chapter 1

goals and outcomes towards which social delivery structures and systems must gear themselves, as well as yardsticks by which their achievement of these goals and outcomes can be measured, and mechanisms through 4 which non-achievement of the goals and outcomes may be corrected. By doing this, rights have the power, over time, to significantly change the 5 manner in which social delivery systems function.

But this power is not uncontroversial. Where rights are enforced through the court system, they alter the balance of power within the state and cause tensions between courts and the legislative and executive branches of government over how, and from where, social delivery efforts 6 are to be driven. Moreover, while judicial enforcement of rights has the real potential to deepen democracy through amplifying the voice of citizens in conversations over the satisfaction of their socio-economic 7 needs, factors such as unequal access to courts, the power of social movements and interest groups which make use of the judicial process, as well as judges’ individual perspectives and value systems, may distort democratic processes and disrupt or destabilise the pursuit of democratic 8 projects.

One field in which the impact of rights-based litigation has been particularly controversial, is that of health. Around the world, there has been increased litigation invoking the right to health, and views differ as to whether this has led to greater enjoyment of this right or has assisted health systems in delivering its objects. In few places are these questions more

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See S Gruskin & D Tarantola ‘Health and human rights’ in S Gruskin et al (eds) Perspectives on health and human rights(2005) 3 33-43. S Gloppen & MJ Roseman 'Introduction: Can litigation bring justice to health?' in Ely Yamin & Gloppen (n 1 above) 1-2. See D Brand ‘Socio-economic rights and courts in South Africa: Justiciability on a sliding scale’ in F Coomans (ed)Justiciability of economic and social rights: Experiences from domestic systems(2006) 207 225-227; Ely Yamin (n 1 above) 335; A Govindjee & M Olivier ‘Finding the boundary‒ The role of the courts in giving effect to socio- economic rights in South Africa’ (2007) 21Speculum Juris167 169-171; S Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010) 66-71; K McLeanConstitutional deference, courts and socio-economic rights in South Africa(2009) 108, 113-114; M Pieterse ‘Coming to terms with judicial enforcement of socio- economic rights’ (2004) 20South African Journal on Human Rights 383 390-392, 417; KG Young ‘A typology of economic and social rights adjudication: Exploring the catalytic function of judicial review’ (2010) 8International Journal of Constitutional Law 385 386. This is further discussed in section 1.4 below. See D Brand ‘Judicial deference and democracy in socio-economic rights cases in South Africa’ (2011) 22Stellenbosch Law Review614 622-626; C Cooper ‘South Africa: Health rights litigation: Cautious constitutionalism’ in Ely Yamin & Gloppen (eds) (n 1 above) 190 210; Pieterse (n 6 above) 392; M Pieterse ‘On “dialogue”, “translation” and “voice”: A reply to Sandra Liebenberg’ in S Woolman & M Bishop (eds) Constitutional conversations(2008) 331 336-337. Cooper (n 7 above) 193-194; S Gloppen ‘Social rights litigation as transformation: South African perspectives’ in P Jones & K Stokke (eds)Democratising development: The politics of socio-economic rights in South Africa153 158-160; T Madlingozi ‘Post- (2005) Apartheid social movements and the quest for the elusive “new” South Africa’ (2007) 34Journal of Law & Society77 94-95; M Pieterse ‘Health, social movements and rights- based litigation in South Africa’ (2008) 35Journal of Law and Society364 379-380.

Rights, health, courts and tranformation 3

acute than in South Africa, where the objects of the right to health coincide with the government objective of transforming a severely inefficient and inequitable health system into one which promotes health effectively and which enables universal, needs-based access to quality health care.

The need for health care reform in South Africa is stark and urgent, with crumbling health service delivery in a number of provinces currently 9 raising the concern of human rights bodies and organisations. Amidst crisis management and a range of ad hoc efforts to strengthen different aspects of the health system, the state is in the process of radically reconfiguring the totality of the system, with a wide range of legislative and policy reforms over the last decade-and-a-half currently culminating in the 10 formulation and implementation of a National Health Insurance system.

These reform efforts have taken place against the background of a widely celebrated constitutional dispensation, which centres on a Bill of Rights entrenching a broad range of fully justiciable human rights, including several socio-economic rights. The Constitution of the Republic of South Africa, 1996 awards courts extensive powers of judicial review over legislative and executive action which, controversially, extends to review over compliance with the socio-economic rights in the Bill of Rights. This means that South African courts have a significant say over the course and effects of social policy processes, including the health system reforms alluded to above. The political tensions accompanying this fact are particularly acute at present, with the state recently having ordered an independent study on 'the transformation of the judicial system and the role of the judiciary in the developmental South African State', which purports to centre specifically on the effect of constitutional rights jurisprudence on the advancement of social transformation and on the separation of powers between the judiciary and the political organs of 11 state.

At this political juncture, then, this book considers and assesses the ways in which rights-based litigation has thus far impacted on the

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On the breakdown of health services in the Eastern Cape, see Eastern Cape Health Crisis Action CommitteeMemorandum to MEC Sicelo Gqobana: About the crisis in Eastern Cape health (September 2013) available through http://www.echealthcrisis.org (accessed 6 May 2014). On the similar state of health services in Gauteng, see Section 27 & Treatment Action CampaignMonitoring our health: An analysis of the breakdown of health care services in selected Gauteng facilitiesOn Mpumalanga, see South (2013). African Human Rights CommissionReport in the matter between Democratic Alliance, Mpumalanga and the Department of Health, MpumalangaRef MP/1213/1060 File (December 2013). See further the discussion in section 1.2 below. See Department of Health, Republic of South AfricaNational health insurance in South Africa: Policy paper(2011) as well as section 1.2 and ch 4 below. Department of Justice and Constitutional Development, Republic of South Africa Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state(2012) 27-29. See also IM Rautenbach ‘Policy and judicial review‒ political questions, margins of appreciation and the South African constitution’ (2012)Tydskrif vir die Suid-Afrikaanse Reg20 20-21.

4Chapter 1

operation and transformation of different features of the South African health system. Its aim is both to advance our understanding of this impact and to assess whether, and how, the manner in which health-related constitutional rights have been invoked by citizens and social movements, as well as the manner in which courts have interpreted and enforced these rights, have shaped it. Whilst indeed concerned with the transformation of the health system, the book is thus primarily an attempt to reflect upon the South African experience of judicially enforcing health-related rights.

Accordingly, the book considers the effects of the health-related rights in the 1996 Constitution, and the litigation in which they have (directly or indirectly) been invoked, on a number of different features of the health system. These include the formulation and implementation of health laws and policies, the implementation of court orders which vindicate the right to health, processes of health resource allocation and rationing, the regulation of health care delivery in the private sector, and the promotion and protection of public health. Admittedly somewhat disparate, these subject areas have been chosen because they highlight different ways in which rights typically operate – as individual causes of action, as drivers of or catalysts for systemic change, as directive principles, as constraints on policy possibilities, and as enhancers of participatory democracy. Throughout, the aim of the book is to better understand how rights discourse and rights-based judicial review have altered the legal and policy landscape around health care service delivery and health system reform; how they have at once constrained and enabled it, opened it up for contestation, inserted patients' needs into the relevant processes and, importantly, how they have affected the system's ability to meet those needs.

Out-and-out a desk-based study, the book draws upon and amalgamates a fairly broad cross-range of literature on the utility of rights discourse, the forms, limits and possibilities of judicial review, the recognition, interpretation and enforcement of socio-economic rights, the bureaucratic impact of judicial decision-making, the nature, functioning and flaws of the South African health system, and the regulation of the private sector. Sources consulted include academic writings, reported court decisions, health care legislation and policy documents, and reports by NGOs and human-rights bodies on the state of the health system. While often drawing upon the wealth of available international and comparative legal materials on these topics, the aim is mostly to present a South African perspective on the relevant issues, and preference is given to literature articulating a South African take on doctrines, problems and solutions that also occur internationally.

In setting the stage for what is to follow, this introductory chapter first provides a brief overview of the state of the South African health system, the challenges it faces and the efforts that have been made to overcome these. Then, I cursorily discuss the content and dimensions of the right to

Rights, health, courts and tranformation 5

health in international law and indicate the extent to which the various elements of the right have been embedded in the South African Constitution. Thereafter, I take a closer look at South African courts, who have been tasked with adjudicating disputes pertaining to the various aspects of this right, and whose judgments therefore impact on the functioning of the health system and on the political efforts to reform it. I briefly explain the extent of the courts’ constitutional review powers and trace the way in which they have thus far exercised these in socio- economic rights cases. While focusing on the manner in which courts have walked the difficult institutional and political tightrope implied by these powers, this discussion also provides an introductory overview of the case- law that forms the focal point of subsequent chapters. To conclude, the aims and objectives of these subsequent chapters are then introduced.

1.2

The state of the South African health system

As with other aspects of our society, the shadow of Apartheid, and the inhumanity and inequality occasioned by it, continues to loom large over the South African health system. In the words of the South African Human Rights Commission:

The South African health care system, prior to 1994, resembled the fragmented and failed system that Apartheid was. As such, the health care system was characterised by abject discrimination, unequal distribution of resources, unethical execution of responsibilities by health practitioners and large scale complicity in upholding the system of apartheid. A lack of coordination and lack of accountability was also common. Apartheid South Africa offered a co-existence of first-world and third-world health care services (often operating just metres apart) with the first-world experience 12 being the almost exclusive preserve of whites.

Fragmented, structurally deficient, overly focused on the health needs of white South Africans‒as mirrored, for instance, by the overconcentration of health facilities in urban areas and a disproportionate emphasis on tertiary over primary health care – and grossly inefficient, the health system bequeathed to the first democratically elected government in 1994 13 was simply unable to serve the needs of broader society. Despite several laudable reform efforts in the years since, this largely remains the case.

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South African Human Rights Commission ReportPublic Inquiry: Access to Health Care Services(2008) 12. SAHRC (n 12 above) 12-14. For a detailed exposition of the state of the health system before and during apartheid, see HCJ van Rensburg ‘A history of health and health care in South Africa’ in HCJ van Rensburg (ed)Health and health care in South Africa (2ed 2012) 61 62-115. See further H Coovadia et al ‘The health and health system of South Africa: Historical roots of current public health challenges’ (2009) 374The Lancet 817 820, 825-826; B Harris et al ‘Inequities in access to health care in South

6Chapter 1

In particular, untenable racial and geographic disparities in access to health care services continue to linger, and have been exacerbated and 14 reinforced by the bifurcation of the health system. The dying years of apartheid saw the large-scale privatisation of health care and the concomitant deregulation of the private health system, which gradually drew away health care professionals, and wealthier patients, from the 15 public system. Today, the gulf between the cost and quality of health care service delivery in the private and public health sectors is staggering. By far the majority of resources spent on health in South Africa are spent in the private sector, which renders good-quality but exorbitantly expensive‒ and, often, wasteful and unnecessary‒care. Accordingly, while it employs the majority of South Africa's health care professionals, the private sector serves only about a fifth of the population, almost all of whom have access to medical insurance. Given the structural nature of unemployment and poverty, such uneven access to private sector care continues to reflect the 16 racial and class patterns of apartheid.

The majority of poor and black patients, and the bulk of the burden of disease, thus currently fall to be dealt with by the public health care sector, which is severely battling to cope therewith. In addition to a serious shortage of human, financial, technological and infrastructural resources – at least partly occasioned by the overconcentration of such resources in the 17 private sector‒the main challenge faced by the public health sector since the advent of the democratic era has been poor leadership in the Department of Health. This has manifested both politically – with the former, long-time Minister of Health, Dr Manto Tshabalala-Msimang, being embroiled in a number of political scandals, notably around her and then-President Thabo Mbeki's support of Aids denialists and concomitant opposition to anti-retroviral treatment for HIV – and operationally, with poor management, corruption, bureaucratic tangles, lack of human resource planning and numerous legal and regulatory deficiencies leading 18 to the Department being severely dysfunctional.

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Africa’ (2011) 32Journal of Public Health PolicyS103; Adila Hassim et al (eds) S102 Health & democracy(2007) 12-3; C Ngwena ‘The historical development of the modern South African health-care system: From privilege to egalitarianism’ (2004) 37De Jure 290 299-301; B Ruff et al ‘Reflections on health-care reforms in South Africa’ (2011) 32Journal of Public Health PolicyS184. Harris et al (n 13 above) S119. See Van Rensburg (n 13 above) 100-112. SeeNHI Policy Paper(n 10 above) 4-6 as well as Cooper (n 7 above) 191; Coovadia et al (n 13 above) 826-827; SAHRC (n 12 above) 7, 14, 57-58; Van Rensburg (n 13 above) 105-106. This is discussed in greater detail in ch 4 and 5 below. Hassim et al (n 13 above) 25-26. See S Benatar ‘The challenges of health disparities in South Africa’ (2013) 103South African Medical Journal154 155; Coovadia et al (n 13 above) 829-832; R Gaigher ‘The political pathology of health care policy in South Africa’ (2000) 32Acta Academica44 46; N GeffenDebunking delusions: The inside story of the Treatment Action Campaign (2010) 77; Hassim et al (n 13 above) 28-29; HCJ van Rensburg & MC Engelbrecht ‘Transformation of the South African health system: Post-1994’ in Van Rensburg (ed) (n 13 above) 121 165-166; S Woolman et al ‘Why state policies that undermine HIV

Rights, health, courts and tranformation 7

As a result, the public health system has become unable to deliver care at the required level and scale. Recent reports on crises in public health care service delivery in three of South Africa’s provinces all detail human resource shortages, stock-outs of consumables and essential medicines, crumbling infrastructure, financial mismanagement, over and under spending, and poor working conditions in public hospitals. Moreover, all attribute these mainly to mismanagement, corruption, lack of managerial 19 capacity and poor leadership.

Tragically, all of this has coincided with South Africa becoming the epicentre of the worldwide HIV/AIDS pandemic that catapulted the South African health burden, which had already been disproportionately high due to the debilitating impact of poverty and inequality on population 20 health status, to previously unimaginable levels. Not only have HIV infection rates in South Africa been amongst the highest of the world, but the epidemic has also come to epitomise the failures in political leadership alluded to above, with political and ideological denial of the cause, scale and effects of the epidemic severely hampering the health system's ability 21 to respond to it. Moreover, the epidemic has highlighted the manner in which private-sector profiteering impacts on the health system's ability to provide access to health care, in that the system has had to negotiate exorbitant HIV treatment prices occasioned, amongst other factors, by pharmaceutical manufacturers’ strong patent rights and by the profit 22 margins of retail pharma.

Because of the severity of the burden of disease, the administrative and political shambles of the public health system and the misdistribution of health expenditure and resources between the public and private sectors, South Africa's health outcomes have not improved since 1994 and are much worse than can be expected of a state with its level of development, and, in particular, of a state which spends over 8,5 per cent of its GDP on

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lay counsellors constitute retrogressive measures that violate the right of access to health care for pregnant women and infants’ (2009) 25South African Journal on Human Rights102 125. See Eastern Cape Health Crisis Action Committee (n 9 above) 2-5 (re the Eastern Cape); Section 27 & Treatment Action Campaign (n 9 above) 4, 9-29 (re Gauteng); SAHRC (n 9 above) 31-33, 37-38 (re Mpumalanga). On the scale and impact of the South African HIV epidemic, see Hassim et al (n 13 above) 26-27; Pieterse (n 8 above) 365 and authorities cited there; N Redelinghuys ‘Health and health status of the South African population’ in Van Rensburg (ed) (n 13 above) 237 276. See Geffen (n 18 above) 1-4, 193-196; M Heneke 'An analysis of HIV-related law in South Africa: Progressive in text, unproductive in practice' (2009) 18Transnational Law & Contemporary Problems 751 771-773; C Kenyon 'Cognitive dissonance as an explanation of the genesis, evolution and persistence of Thabo Mbeki's HIV denialism' (2008) 7African Journal of AIDS ResearchPieterse (n 8 above) 366-369 and 29; authorities cited there; Van Rensburg & Engelbrecht (n 18 above) 173-174; as well as ch 3 below. Hassim et al (n 13 above) 27-28; M Pieterse ‘The legitimizing/insulating effect of socio-economic rights’ (2007) 22Canadian Journal of Law & Society1 5 and authorities cited there.