Understanding Health Sector Transformation within South Africa’s Constitutional Framework

1. Understanding Health Sector Transformation within South Africa’s 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

3. 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

4. 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 services;or • Protect the common market or the environment; or • Promote economic activities between provinces.

5. 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 limitsthe 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 groundsdoes not relieve the Legislature of its constitutional obligations to promote, protect and fulfil the rights entrenched in the Bill of Rights.” • Justice Kate O’Regan in Dawood v Minister of Home Affairs2000 (3) SA 936 (CC) at paragraph 63

6. 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 children’s rights • Access to sufficient food & water, social security and housing • Access to health care services

7. 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”

8. Health and constitutional rights: respect, protect, promote and fulfil • Respect • Do not limit rightsunreasonably 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

9. Health and constitutional rights: access to health care services • Respect and protect (s 7(2)) • State must not limit rightsunreasonably 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

10. 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

11. 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?

12. 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 all—others must be enabled by legislative and other measures to provide

13. 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

14. 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

15. 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

16. 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 • Government’s plan to deal with PMTCT was unreasonable and inflexible

17. 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

18. Contact details Law & Treatment Access Unit AIDS Law Project Centre for Applied Legal Studies University of the Witwatersrand bergerj@law.wits.ac.za (011) 717-8627 (t) (011) 403-2341 (f) www.alp.org.za