Laws of Access to Health Care

Laws of Access to Health Care in South Africa

XOLA NYIRENDA*  

The state must respect, protect, and fulfill the rights in the Bill of Rights.  

-Constitution of the Republic of South Africa  

1. Background  

Access to health care is a complex issue of constitutional significance. There are significant number of people in South Africa who do not have adequate access to health services due to geographical, financial, physical, communication, sociological (such as unfair discrimination and stigmatisation)  and other barriers.    In an atempt to address the legacy of apartheid in the health sector and in accordance with its recognition of fundamental human rights, The supreme law of the country (the constitution) has, in s 27 (1)(a) entrenched the right to have access to health care services including reproductive health care. Section 27(3) provides that no one may be refused emergency medical treatment, and s 28(1)(c) entitle every child to the right to basic health care services. Like other rights in the Bill of Rights, the courts may enforce these rights. In addition, section 24(a) recognises the right to an environment that is not harmful to health or well-being. While s 35 (2)(e) entitle detained persons including every sentenced prisoner to the right to conditions of detention that are consistant with human dignity, including atleast exercise and the provision, at state expense,  of adequate accomodation, nutrition, reading material and medical treatment. Section 27(2) obliges the state "to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation" of, among others, health care rights.  

2. Access to Health Care as a Socio- economic right  

The South African health system has come a long way since 1994. There are an impressive constitutional, legal and policy framework that guarantees the right to access to health care to all persons in...