The Constitution clearly states in the Bill of Rights that access to healthcare is a basic human right. More importantly, the state is mandated to take reasonable legislative and other measures to make this right a reality for all. (Photo by Gallo Images / Foto24 / Bongiwe Gumede) 
Prof Narnia Bohler-Muller is divisional executive of the Developmental, Capable and Ethical State (DCES) research division at the Human Sciences Research Council (HSRC), a legal and constitutional expert and a member of the Ministerial Advisory Committee on National Health Insurance.
Moremi Nkosi is a senior research specialist in the DCES division of the HSRC focusing on health systems financing reform and health systems research.
South Africa’s health system is plagued by a legacy of fragmentation and a two-tier structure that continues to be a barrier to the way individuals, households and communities access healthcare services and how they benefit from them.
A diagnostic report on access to quality healthcare in South Africa confirmed that because of the disparities in the distribution of resources between the public and private health sectors, the most vulnerable groups of the population have inequitable access to, and use of, the very healthcare services they need to live a socially and economically productive life.
The corollary of this is that the better-off sections of the population, disproportionately, and unfairly so, benefit the most from our two-tiered health system. This is despite our venerable Constitution clearly stating in the Bill of Rights that access to healthcare is a basic human right. More importantly, the state is mandated to take reasonable legislative and other measures to make this right a reality for all.
This is where the National Health Insurance Bill comes in. The government, through the National Department of Health, first published the bill for public comments in early 2018. Following the public comments process and a number of iterations, the bill was further revised and an updated version was submitted to the Parliamentary Portfolio Committee on Health in August 2019.
As per the provisions of the Constitution, Parliament gazetted the bill for further public comments and also initiated public hearings across South Africa. The committee is holding virtual meetings at which stakeholders who have made written submissions on the bill are making presentations on areas of support, concern and proposed changes. This is a very important process as it allows for the enhancement of the bill to make certain that whatever is promulgated into law by the president is constitutionally and legally sound. The process of public participation is far from over, but we all must appreciate that this is a very important phase in the history and future of our healthcare system, and our country.
So what exactly are the constitutional foundations for National Health Insurance?
The White Paper on National Health Insurance sets out the policy framework on which the bill is founded — the principles of equity, social solidarity, health as a public good, appropriateness of care and affordability, among others, are intended to create a health system that is integrated, fair and accessible for all South Africans. This is important as it would move South Africa forward on the path towards achieving universal health coverage — a key Sustainable Development Goal target directed at ensuring healthy lives and promoting wellbeing for all people irrespective of their race, gender, age or other factors.
The bill is intended to move South Africa towards this objective — through the creation of a National Health Insurance Fund as a strategic purchaser of healthcare services on behalf of the population and, in so doing, providing South Africans with financial risk protection from the costs associated with accessing and using healthcare services.
However, it is not surprising that a number of stakeholders have indicated resistance and even disdain at the contents of the bill, seemingly oblivious to the fact that rational and sensible comments and suggestions would be taken into account by Parliament to improve its relevance and applicability within our health system. It is striking that not all the concerns raised have a direct bearing on the constitutionality or legality of the bill — with a number of comments raising pointed questions about the state’s capacity to implement such far-reaching reforms, coupled with claims of missing details in the bill which in all likelihood would best be prescribed in regulations.
South Africa is not alone in its efforts to progressively transform its healthcare system into one that delivers universal health coverage in a tangible way. The World Health Organization, of which South Africa is an active member, sees universal health coverage as a means to realise the right to health based on a system of protection that gives everyone an equal opportunity to enjoy the highest attainable standard of health. This requires a human rights-based approach that consistently seeks to ensure that all health policies, strategies and programmes are designed with the objective of progressively improving the enjoyment of all people of the right to health and healthcare.
Our Constitution is testament to the values that all South Africans should espouse, live by and work tirelessly to achieve. In the spirit of Ubuntu, we must all strive to work on leveraging the values and principles enshrined in the Constitution to transform the fragmented and inequitable structure of our health system into one that promotes fair, equitable and accessible healthcare to all.
Interventions to reach this objective adhere to rigorous principles and standards, including non-discrimination, availability and accessibility of services, their social and cultural acceptability, with the full recognition of universality. A human rights-based approach empowers people to claim their rights and encourages policymakers and service providers to meet their obligations in creating more responsive healthcare systems. The National Health Insurance Bill is indeed founded on a human rights-based approach to healthcare, and this is reflected in the preamble as well as Section 2 of the bill, which outlines its purpose.
Furthermore, the preamble to the Constitution of the Republic of South Africa, 1996, provides for “the need to improve the quality of life of all citizens and to free the potential of each person”. Section 7 (1) states that the Bill of Rights is a “cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. Section 7 (2) provides that the state must “respect, protect, promote and fulfil” the rights in the Bill of Rights.
In general, the state’s positive and negative duties are set out in Section 7(2) of the Constitution and in relation to healthcare services. This means that government must respect the right of access to healthcare services by not unfairly and/or unreasonably getting in the way of people accessing healthcare services, protect this right by developing and implementing a comprehensive legal framework to enable access to healthcare for all, without discrimination; promote the right by creating a legal framework to realise it; and fulfil the right by creating the necessary conditions for people to access healthcare, through providing positive assistance, benefits and quality healthcare services.
Section 27(1)(a) of the Constitution also states that everyone has the right to have access to healthcare services, including reproductive healthcare. Section 27(2) provides that the State must take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the right of access to healthcare services.
Section 28(l) (c) of the Constitution provides that every child has the right to basic healthcare services, which is a right that is not subject to the limitations mentioned in section 27 or the general limitations in section 36. In addition, Section 35(2) (e) determines that persons detained by the state are entitled (without limitation) “to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment”. Furthermore, the Constitution must be interpreted in terms of the provisions of Section 39(1)(a), namely that: “When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.” Other laws — and in fact the Constitution itself — must be interpreted to bring into effect the values embodied in the Constitution, including dignity, equality, freedom and Ubuntu.
Furthermore, the South African Bill of Rights, through its limitation clause, expressly contemplates the use of a nuanced and context-sensitive balancing of rights, eg, the right of access to healthcare versus the right to freedom of association.
Section 36 provides that the rights in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.
Therefore, the right to choice cannot be unfettered in instances where policy and legal changes are deemed necessary for the purposes of the greater good of the population.
As part of the global community, South Africa ratified the International Covenant on Economic, Social and Cultural Rights on 18 January 2015. The covenant speaks to the right to health and emphasises equal access to healthcare and minimum guarantees of healthcare for sickness. It states that each state party to the covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present covenant by all appropriate means, including particularly the adoption of legislative measures.
The covenant has defined the normative content of the right to healthcare as equal access, based on the principle of non-discrimination, to healthcare facilities, goods and services. These should be available in sufficient quantity; must be physically and economically accessible to everyone; must be ethically and culturally acceptable; and must be of a medically appropriate quality.
National Health Insurance is part of our journey towards redressing the injustices of the past and creating a society that is caring and prioritises the needs of the most vulnerable and disadvantaged members of our society.
Notably, the Constitutional Court has recognised the value of Ubuntu in numerous cases. In S v Makwanyane and another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) Ubuntu was described as follows:
“The concept is of some relevance to the values we need to uphold. It is a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.”
Our Constitution is testament to the values that all South Africans should espouse, live by and work tirelessly to achieve. In the spirit of Ubuntu, we must all strive to work on leveraging the values and principles enshrined in the Constitution to transform the fragmented and inequitable structure of our health system into one that promotes fair, equitable and accessible healthcare to all.
Social solidarity and a caring society must be part of that reform trajectory in a post-Covid world. DM