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Health and Democracy

In South Africa, as in any society, people’s health is a major factor in both personal and social development.  But in South Africa, unlike many other societies, people have a constitutional right both to access health services and to be treated in a way that should improve their health.  For example, the rights to dignity, authonomy and equality should all inform and have an impact on the right to health.  But despite this, South Africa is a very unhealth society and many indicators of health are getting worse.  The HIV epidemic, violence against women, and homelessness all have a negative impact on health.

The aim of this book is to show how, when it comes to health, fundamental rights, law and policy are inextricably related.  Whether you approach the halth system as a user, employee, policy or lawmaker, each of these elements will be relevant to you interaction with the health system. However, the realisation of the right of access to health care services is dependent on a combination of people’s knowledge of their rights together with proper application of law and policy, particularly by the government.

Chapter 1 of this book shows how before the democratic transition of South Africa, the health system was mired in apartheid law and policy that resulted in gross inequities, many of which still characterise the system today.  The rest of the book critically considers the changes to health law and policy that have taken place since 1994, and makes proposals for the future transformation of the health system.

Achieving the right to health is also dependent on the protection of other rights, including the rights to housing, education, sufficient water and food, dignity, information and the right to vote.  The political and constitutional transition that is still under way in South Africa is significant not only becauseit has ushered in an era in which government bears positive constitutional obligations in respect of all rights, but also because it confers on everyone the right to participate in the ormation of law and to demand accountability from the state.  Participatory democracy is therefore integral to our ability to assert our rights.

The role that the Constitutional Court has played in protecting health is explored in Chapter 2. For example, in 2006 the Constitutional Court had occasion to consider the place of public participation in the formation of health legislation.  In a ground-breaking judgment the Court pronounced that the right of public participation lies at the heart of our constitutional democracy.  It said:

“Our Constitution was inspired by a particular vision of a non-racial and democratic society in which government is based on the will of the people.Indeed, one of the goals that we have fashioned for ourselves in the Preamble of the Constitution is the establishment of ‘a society based on democratic valuse, social justice and fundamnetal human rights’.  The very first provision of our Constitution, which establishes the founding values of our constitutional democracy, includes as part of those values ‘a multi-party system of democratic government, to ensure accountability, responsiveness and openness’.  Commitment to principles of accountability, responsiveness and openness shows that our constitutional democracy is not only representative but also contains participatory elements.  This is a defining feature of the democracy that is contemplated.  It is apparent from the preamble of the Constitution that one of the basic objectives of our constitutional enterprise is the establishement of a democratic and open government in which the people shall participate to some degree in the law-making proicess.”

Doctors for Life v The Speaker of the National Assembly,

CCT 12/05 (August 2006), paragraph 111

This affirmation of participatory democracy reinforces people’s right to be included in the law-making process.  The link between laws and the protection of rights is therefore beyond question.  The rights that are elucidated in the Constitution need to be supported by legislation, policy and budgets that are aimed at their protection, promotion and fulfilment.  However, at times, bad legislation or poor budgeting can threaten people’s rights. It is therefore imperative that we take full advantage of the mechanisms that have been established at national, provincial and local government which allow for public participation in legislative development.

Chapter 4 describes in practical terms the general legal and administrative framework of the health system and the various ways in which we can participate in statutory development.  Again, the core of this framework, and hte norm against which law-making processes will be judged, is the Constitution, and in particular the Bill of Rights.

In view of this, this book is centred on the constituional and human rights framework within the South African health system is located.  But in Chapter 5 it also acknowledges the broader global context and the impact of international law.  This is an important facet to understanding the health system, because South Africa’s ability to pursue certain health reforms may be constrained or facilitated by commitments and agreements made internationally.  Further, the jurisprudential development of the right of access to health care services, as well as the surrounding rights that have an impact on health, learns from the regional and international interpretation of human rights.

The handbook’s written for a variety of readers including health activists, trade union members, health workers, students and teachers of law and health – indeed, anyone looking for a comprehensive guide to the health system, health law and health policy. The purpose of the bood is to reach people for whom access to information about health and law is otherwise difficult.  For example, we hope that chapters such as “The rights and duties of users of the health care system” (Chapter 8 ) and “The rights and duties of health care workers” (Chapter 10) will provide a resource for learning about one’s rights and responsibilities in the health care setting.  It is also intended that the book will be a useful interdisciplinary resource, especially across the fields of law, medicine and public health.

As a result, although the book contains a wealth of accurate information and critical analysis, it is, for the most part, written in an easy-to-read style.  In some chapters the nature of the subject matter (such as the chapter on access to essential medicines) is complex and is therefore a little more dense in its presentation.  In others, such as the chapter on the rights of users in the health care systerm, ther eis a great mass of information to convey, which makes the chapter longer.  At all times, however, we attempt to explain complicated concepts as simply as possible.  There is also a degree of overlap between some chapters – but this is retained, because it is intended that chapters should be self-standing as well as complementary to each other.

Broadly, three key themes underlie this book.  On concerns the public health system and its regulatory framework.  Within this theme there is a brief desciption of the history of health care in South Africa, how the tranistion to democracy affects the health system (in particular the relationship between the Constitution and public health), how health care is financed, the technical requirements for the development, registration and use of medicines and the legal and administrative framework of the health system.

Secondly, while the thrust of the book looks towards the public sector, there is also an examination of the private and traditional health sectors, both of which are integral to the South African health syste, and of how these sectors relate to the public sector. At present the sectors operate independently of each other and often to the detriminet of affordable access to quality health care services.  The relevant chapter in this theme explain the way in which the sectors function, the imbalances between the private and public sector, the historical lack of attention to traitional health care and how the secotrs may be appropriately regulated in order to redress inequities.

The third theme concerns the exercise and protection of one’s right to health.  It deals specifically with the protection and promotion of the rights of health care workers and uses if the health system, women’s rights, children’s rights, the rights of participatns in clinical trials and health research and the right of access to affordable medicines (as a component of the right of access to health care services).

Finally, throughout this book there is a reliance on the examples drawn from health activism regading HIV/AIDS to illustrate the practical implications of law and policy.  This is so partly because most of the authors work in the field of HIV/AIDS; but it is also relied upon because essential leaps in jurisprudence have taken place in that context.  The right of access to health care for people with HIV also provides an easy to understand example of the links between the Constitution, law and policy – and how these affect the lives of everyone in South Africa. It is also still the major site of contestation between health users and the state with regard to the meaning of the right of access to health care services, and will likely continue to be for some time.

While every effort has been made to ensure that the information contained in the book is as up-to-date as possible, the health system is a fast-evolving landscape.  In order to maintain its accuracy and relevance the book will be preiodically updated.

In conclusion, it is our hope that htis book will demystify the complex web of health-related law and poilicy and that it will empower thereader to challenge ciolations, or threatened violations, of the right of access to health care services as well as to facilitate the fulfillment of the right.  The Constitution, and the rights it entrenches, should not only reside in the parlance of the courts.  In order for usto be true bearers of rights we must understand them, assert them, and pursue their enforcement.

Adila Hassim, Mark Heywood , Jonathan Berger

The electronic version is available in PDF format below. Printed copies are available directly from the ALP.