Chapter 14
LEGISLATIVE FRAMEWORK AND THE RIGHT TO HEALTH 2015–2020
Sasha Stevenson, Leslie London, Russell Rensburg
Introduction
Law plays an outsized role in South African health advocacy. This is despite some misgivings about the utility of law and policy in meeting the constitutional imperative to ensure that ‘everyone has a right of access to health care services’. In this chapter we consider the reason for the focus on law and the right to health care services as a determinant of health, and the development of law and policy in the past five years (both through legislation and legal advocacy). We go on to reflect on one of the biggest potential legal interventions to realise the right to health – National Health Insurance (NHI) – and how the experience under COVID-19 has demonstrated both the need for health financing and systems reform, and lessons for NHI.
The relationship between law and the right to health
Does law matter?
An often-repeated lament in South Africa is that we have good law and policy but fail on implementation. The implication is that it does not really matter what the law says if it does not result in the realisation of rights. Why, then, write a book chapter on the legislative framework and the right to health?
Yamin describes health as ‘perhaps the most radical of subjects for human rights because, more than any other topic, it challenges the boundaries of what is “natural”. There can be no right to be healthy… [b]ut much of population health is indeed subject to social control through laws, policies, and programmes that influence exposures and mitigate effects…’1
Law in itself cannot realise the right to health. However, without it we lack the framework for rights realisation. Law can also negatively impact the social determinants of health, and result in discrimination in access and treatment. The report of the Lancet Commission on the Legal Determinants of Health states:
‘By establishing the rules and frameworks that shape social and economic interactions, laws exert a powerful force on all the social determinants of health. Well-designed laws can help build strong health systems, ensure safe and nutritious foods, evaluate and approve safe and effective drugs and vaccines, create healthier and safer workplaces, and improve the built and natural environments’.2
In other words, ‘law can turn vision into action’,3 whether that is through requiring universal access to health care services, or setting standards for the registration of medicine or the quality of services or training. It can strengthen governance of health institutions and decision-making structures.4 It can also create the space for civil society to hold state and non-state actors accountable for realisation of health rights.5
Thus, while good laws alone do not equate to the realisation of the right to health, they are, globally and in South Africa, an important framework for the development of a health system that is capable of realising the right.
Health law and the right to health care services is thus a site and a tool of, and not a substitute for struggle.6
Law has particular importance in health advocacy in South Africa. Activists use the constitutional right of access to health care services, together with supporting rights, as the basis for claims.
One of the ways to use the law for the realisation of rights is through litigation. Yamin notes that ‘the propriety of judicial intervention is at least to some degree inherently related to how one assesses the capacity of the political branches of government to maintain health systems that respond rationally to the population’s needs’.7 Perhaps due in part to the failure of political branches to maintain a responsive health system, litigation on the right to health in South Africa, while not as common in comparison to some other rights or as frequent as in some other countries, continues to be used as a tool to secure realisation of the right. Reflecting on the utility of right to health litigation, Yamin notes further ‘the overall evidence suggests that health rights litigation is neither a dangerously infectious trend to be urgently contained nor a panacea for health inequity’.8 Courts can facilitate and prompt democratic deliberation by bringing neglected voices into public fora, unblock channels for problem-solving and reorganise the structural dimensions of social problems.9
The most famous example of the use of law in health advocacy in South Africa is the campaign for access to antiretrovirals (ARVs) to prevent mother to child transmission of HIV. HIV prevalence among pregnant women attending antenatal clinics grew from 7.6% in 1994 to 30.2% in 2005.10 In the absence of treatment, an estimated one-fifth to one-third of children born to mothers living with HIV would have contracted the virus, but the chance of transmission would be halved through the use of nevirapine.11 The Treatment Action Campaign (TAC), a social movement comprised mostly of people living with HIV, initiated a campaign of rights awareness and treatment literacy, advocacy, mobilisation and litigation to secure access to such treatment. Educating people about HIV, its treatment, and the right to access health care services, including treatment, was the foundation of the struggle, and skilful litigation together with out of court legal and other advocacy won an ARV roll-out that became the world’s biggest
ARV programme.12 The movement around and prompting the litigation emboldened affected people to understand their claims as underpinned by demands for justice rather than charity.13
Almost 20 years later, health advocacy in South Africa continues to draw on legal claims and uses a combination of research, education, mobilisation, assistance to government and litigation to secure the realisation of health rights.
While health advocacy (from civil society, academia and others) and progressive government policy and implementation has improved access to health care services, huge problems remain. Access to services and the quality of services that a person receives depend largely on socio-economic status, geography, race, gender and other factors that should not be determinative of whether one has access to life-saving or enhancing care. The inequality of funding between public and private health services is well known. Access to services between provinces and between urban and rural areas varies significantly. Furthermore, medication out of stock14 or health worker objection to the provision of health services such as termination of pregnancy15 means that access to the treatment or service required can be secure in a health facility one day and absent the next.
A human rights approach to health
The right to health is not merely a principle. It can be applied in an operational, systematic and sustained manner,16 which is how both international and South African law require it to be.
The right to health care services has a constitutional basis in South Africa, with the Constitution providing that ‘Everyone has a right of access to health care services including reproductive health care’ and requiring that the state must take ‘reasonable legislative and other measures within its available resources’ to progressively realise that right.17 Children are guaranteed a further right to ‘basic health care services’ which is immediately realisable and is not subject to progressive realisation or available resources.18
The constitutional right has been interpreted by the courts to include the provision of antiretroviral therapy to pregnant women19 and to people in prison20 , and the right to access to affordable medicines.21
The Constitution recognises rights to be indivisible, interrelated and mutually supporting, which means that it is necessary to achieve the realisation of some rights in order to fully enjoy other rights. For example, without realisation of everyone’s rights to health care services, basic education, food and water, the rights of some to dignity and equality are infringed.22 The National School Nutrition Programme, which feeds around 9.3 million learners every day in South Africa is intended both to ensure the realisation of the right to basic nutrition and children’s rights to basic education, recognising that one cannot learn on an empty stomach.23 In short, the right to health is not fully realisable unless other rights are realised.
South Africa is also a signatory to several international covenants including the International Covenant for Economic, Social and Cultural Rights (ICESCR)24 which it signed in 1994 but only ratified in 2015. The ICESCR provides for the right of everyone to the ‘enjoyment of the highest attainable standard of physical and mental health’ and requires states to take steps for its realisation. Additionally, the Committee on Economic, Social and Cultural Rights’ General Comment 1425
recognises that health is more than just access to health care, but is determined by a range of social factors such as access to decent housing, safe water, adequate sanitation, nutritious food, education, health-generating employment and numerous other factors. Most of these factors are also rights contained in our Bill of Rights in Sections 26, 27 and 29, amongst others.
The legal status of health rights in South Africa is therefore clear. The question then is what they mean or how the right to health care services can be made ‘operational’?
The right to the highest attainable standard of health is an individual and a community right and has, at its core, a health system that is responsive to needs and accessible to all.26 It is in furtherance of this element of the right to access health care services that health rights litigation in South Africa, unlike in other countries, has been pursued to develop the health system in a way that enables the realisation of rights rather than purely to meet individual needs.27
The right to health requires that we adopt an understanding of the health system as a core social institution.28 Hunt and Backman compare an effective health system to a fair justice system.
‘The right to a fair trial is widely recognised to have strengthened many court systems. It has helped to identify the key features of a fair court system [such as independent judges, legal aid and trials without undue delay]. In much the same way, the right to the highest attainable standard of health can help to establish effective, integrated, and accessible health systems’.29
A focus on realising the right to health therefore strengthens health systems, ensuring health coverage that is truly universal and meets the needs of people.30
A right to health approach to strengthening health systems requires the application of human rights principles to each of the World Health Organization’s health system ‘building blocks’. These building blocks are services; workforce; information systems; medical products, vaccines and technologies; financing; and leadership, governance and stewardship.31
The building blocks should themselves be built using the right to health principles of transparency, participation, a focus on process along with outcomes and on the underlying determinants of health as well as medical care. Incorporating right to health principles requiring the centring of the well-being of individuals, communities and populations, equity and non-discrimination, and respect for cultural difference into the building blocks creates a health system that caters to the needs of the country. The right to health principles of quality and progressive realisation (which includes a plan for improvement with benchmarks and monitoring and evaluation) ensure improvement within the building blocks. Finally, recognising health as a public good and as a right informs and serves as a foundation for the health system building blocks.32
If law can be used to build a health system that realises and protects human rights, has law developed and been used in the period between 2015 and 2020 to do just that?
The legal framework and how it has changed between 2015 and 2020
The health system in South Africa is governed by the National Health Act 61 of 2003 (NHA), which was enacted in furtherance of the state’s obligations under section 27 of the Constitution to take reasonable legislative and others measures to realise the right of access to health care services. The NHA sets out the structure of the health system, laying out the powers and responsibilities of national, provincial and local spheres of
government, and providing for both public and private components to the system. The NHA creates a framework for the delivery of health care services and provides for the rights and duties of health care personnel, governance of health facilities, the quality of health care services, and human resource planning, among others.
The NHA includes a provision for the Minister to make regulations on a range of issues, and other pieces of legislation and policy deal with particular aspects of the health system and health law.
Between 2015 and 2020, while only one Act within the purview of the Minister of Health has been passed (although this Act is not yet in effect), there have been some significant enacted and proposed changes in the legal framework for health and health-related matters. Here we review some of these changes, before considering the impact of litigation, legal advocacy and other legal processes in this period.
Legislation
National Public Health Institute of South Africa Act
The National Public Health Institute of South Africa Act 1 of 2020, not yet in force, was the only Bill introduced to the legislature by the Minister of Health in this period that has been signed into law.
The Act provides for the establishment of the National Public Health Institute of South Africa (NAPHISA), which is intended to coordinate and conduct disease and injury surveillance, and to provide for specialised public health services, interventions, training and research on the major health challenges in the country. It is expected that NAPHISA will fill an important gap in the public health landscape in South Africa. While there are some excellent surveillance systems in the country, they are managed by different institutions and there is no coordination or integration. This means that the data that should inform health policy is fragmented.33 NAPHISA is intended to change this; to become South Africa’s version of the Centre for Disease Control in the United States. NAPHISA will include divisions dealing with communicable and non-communicable diseases, occupational health, cancer surveillance, injury and violence prevention, and environmental health.
When it is established, NAPHISA should contribute to the realisation of the right of access to health care services through the creation of an evidence base for health rights-protective policy. Until such time, South Africa remains without coordinated surveillance and research, to the detriment of rights realisation.
Policy and Regulations
Intellectual Property Policy
Many medicines and medical devices are prohibitively expensive, largely because of the intellectual property (IP) rights accorded to those who make or produce them. Intellectual property rights are the incentive currently used to encourage the development and production of these lifesaving substances and tools. However, such rights neither need to be the incentive used, nor should they trump the health rights of their users.
In the late 1990s, South Africa recognised the limitation on access to antiretroviral treatment that wide-ranging IP protection caused and amended its legal framework governing the regulation of medicines to enable access to generic medicines.
This move was strenuously opposed by the pharmaceutical industry supported by the United States government, which litigated against the South African government. Following significant public pressure led by the TAC, the matter was settled.34
Despite this early pushback against public health damaging IP protection, at present there is no substantive examination of patents in South Africa, including patents on medicines and medical devices. If the right paperwork is filed and a filing fee is paid, a patent can be granted. This results in far more poor-quality patents being granted in South Africa compared to other countries. There is also no process for an affected person to oppose the granting of a patent, either before or after it is granted. Finally, there are no criteria for patentability to ensure genuine innovation through the patent system. This allows for what is called ‘evergreening’: re-patenting essentially the same invention with small changes, such as turning a tablet into a capsule. Evergreening a patent results in a further 20-year monopoly on its production and sale.
The result of the current IP regime is the creation of monopolies on the production and sale of medicines and medical devices over long periods without certainty that there has been any or substantive innovation that requires protection.
The Intellectual Property Policy of the Republic of South Africa Phase 1 (IP Policy)35 was approved by Cabinet on 30 May 2018 and envisages a change to the IP regime in South Africa. The IP Policy is intended to be implemented in phases, with Phase 1 focusing on IP and public health and the implementation of commitments undertaken in international agreements. The IP Policy recommends IP law reform, including provision for substantive examination of patent applications, for opposition, and for criteria for patentability, among others. The IP Policy also commits to the introduction of a ‘more effective and efficient’ system to obtain compulsory licenses for medicines. Compulsory licenses ensure that medicine is more readily available by requiring the licensing of producers when a patent is granted. In so doing, the IP Policy introduces the use of flexibilities contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The IP Policy is framed in terms of the Constitution and acknowledges the importance of considering the health impact of economic policy. This framing and acknowledgement, and indeed the eventual adoption of the IP Policy, was the product of sustained advocacy and activism over many years.36
Unfortunately, amendments to IP law in line with the IP Policy have not yet been made. While draft bills have been produced, nothing has yet been introduced in the legislature. This means that in practice, nothing has yet changed in the lives of people in South Africa who need medicines, but which remain unaffordable due to IP regime barriers to access. The IP Policy, while creating the promise of an improvement in the realisation of the right of access to health care services, has not delivered on this promise. Government’s inaction on this issue is somewhat in contrast to South Africa’s international diplomacy, which has seen South Africa at the forefront of global negotiations to secure a waiver of IP related to technologies needed to address COVID-19 at the World Trade Organisation.37
Notifiable Conditions Regulations
On 15 December 2017, 10 years after the first draft of regulations for the control of notifiable conditions was published for comment, the Minister of Health promulgated the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions (Notifiable Conditions Regulations). A public health imperative, the Notifiable Conditions Regulations provide for the responsibilities of officials, institutions and health care providers at different levels and within different sectors of the health system to notify the relevant structures about any diagnosed case of a notifiable medical condition. The most serious notifiable medical conditions include cholera, listeriosis and respiratory disease caused by a novel respiratory pathogen such as SARS-CoV-2. There are three lists of notifiable medical conditions attached as Annexure A to the Notifiable Conditions Regulations, each of which includes a category of notifiable medical condition that must be treated in a particular way.
The Notifiable Conditions Regulations provide for the prevention and control of notifiable medical conditions through voluntary (or, where necessary, mandatory) medical examination, prophylaxis, treatment, isolation and quarantine. Mandatory medical intervention may only take place upon application to a High Court and in particular circumstances. This ensures the appropriate balance of the rights of the individual and the demands of public health.
The Notifiable Conditions Regulations were not yet in place to guide the response to the listeriosis outbreak in 2017–2018, however, the classification of SARS-CoV-2 as a category 1 notifiable medical condition meant that there was a process in place for reporting, examination and treatment of COVID-19 when it was first diagnosed in the country in March 2020.
Emergency Medical Services Regulations
Section 27(3) of the Constitution provides that no one may be refused emergency medical treatment. Despite this clear right that accords to everyone in South Africa, emergency medical services (EMS) have long been a weakness of the health system in many provinces.
Access to EMS in the Eastern Cape, for example, remains limited, with dire health consequences for many, particularly in the rural parts of the province.38 This has been the case for many years39 and there are no signs of improvement. Part of the problem is the poor use of the EMS budget,40 as well as the significant pressure on the overall budget.
EMS has also been a site of corruption, with as yet incomplete Special Investigations Unit investigations into EMS service provision across a range of provinces.41
On 1 December 2017, the Minister of Health promulgated the Emergency Medical Services Regulations.42 The EMS Regulations apply to public and private EMS and require licensing, minimum staffing and equipment for ambulance, and appropriate management of EMS. Existing EMS providers had until 1 December 2018 to comply with the EMS Regulations, however, it is unclear whether the EMS Regulations are currently in force.
Control of sugar, tobacco, and alcohol products
Despite being amongst the leading causes of death, data on diabetes prevalence and treatment coverage is scant. While diabetes was included in the last two South Africa National Health and Demographic Surveys43, the manner in which the sample was constructed did not allow for extrapolation to the general population. Models suggest that between 2008 and 2017, national prevalence rates almost doubled from 5.6% to 10.6%, while treatment coverage of the same period declined from 44.4% to 35.8%.44
Excess sugar is a major cause of obesity and is a risk factor in diseases such as type 2 diabetes, hypertension and heart disease.45
In April 2018, a Health Promotion Levy on sugar-sweetened beverages was introduced. South Africa was the first country in Africa to introduce such a tax, which aims to reduce the consumption of sugar-sweetened beverages. The first four grams of sugar per 100 millilitres of liquid are free, and thereafter, a levy (currently of R0.21 per gram of sugar) is charged. The levy amounts to around 11% of the price per litre of sugar-sweetened beverage.
Research published three years after the introduction of the levy found that the levy36 coincided with large reductions in purchases of sugar-sweetened beverages, in terms of both volume and sugar quantities. This is good news for health and the health system and demonstrates a clear example of law as a determinant of health.
Other measures targeting non-communicable diseases (NCDs), particularly related to tobacco products and alcohol have failed to progress. For example, the Control of Tobacco Products and Electronic Delivery Systems Bill37 was published in the Government Gazette on 9 May 2018 for public comment and sought to bring vaping and other electronic devices delivering nicotine under the purview of tobacco product regulation. However, intensive lobbying and what has been described as an orchestrated misinformation campaign and attempt to buy media influence48 has been used by the tobacco industry to undermine the Bill, which is still to be presented to Parliament.
Similarly, two bills proposing evidence-based measures to reduce alcohol-related harm remain suspended. The Control of Marketing of Alcohol Beverages Bill,49 intended to control harmful marketing of alcohol, particularly affecting children, though approved for release for public comment in 2013, and having undergone three regulatory assessments, remains unpublished. Research has identified the key role of the alcohol industry in lobbying against the bill and its strategies for impeding its progress.50 The Department of Trade and Industry also released a Draft Liquor Amendment Bill51 in 2016 for comment, but no Bill has yet been presented to Parliament or subject to public hearings. In fact, a report52 of draft bills receiving priority attention in 2020 mentioned none of the three bills cited above.
The uneven success of legislative measures to address NCD is both a major concern for a country grappling with a massive burden of NCDs and reflective of the extent to which government struggles to keep industry influence out of the policy process where their products and profits are at stake.53
Legal advocacy and legal processes
The impact of law goes beyond legislative, regulatory and policy changes. Legal advocacy and legal processes in health have also impacted health rights realisation between 2015 and 2020.
Life Esidimeni: When law and policy is implemented badly
The National Mental Health Policy Framework and Strategic Plan 2013–2020 provides for the deinstitutionalisation of mental health care users where appropriate for the individual user and where community residential care facilities have been developed and capacitated to care for mental health care users. It acknowledges that, in South Africa, as elsewhere in the world, deinstitutionalisation has progressed at a rapid rate without the development of community-based alternatives, and has led to homelessness, people with mental illness in prisons, and revolving doors of care.
Despite these warnings, from March 2016, the Gauteng Department of Health moved in the region of 2 000 mental health care users out of Life Esidimeni (facilities in which some people had lived for over 20 years as a result of a contract the facilities had with government) into NGOs that were ill-equipped, ill-prepared and (for a few months) not paid to care for them. The move happened in the midst of a cold winter during which 144 people died of causes varying from cold, hunger and thirst to sepsis from bedsores.
In addition to the warnings contained in the policy itself were warnings from psychiatrists, experienced NGOs, activists, families of the mental health users and lawyers about the likely ‘devastating impact on the health and social well-being of mental health users, the health care system and members of our community’54. Two court cases, multiple protests and countless letters were ignored.
In an arbitration award, issued after 45 days of evidence and legal argument from October 2017, former Deputy Chief Justice Dikgang Moseneke described the ordeal as ‘a harrowing account of the death, torture and disappearance of utterly vulnerable mental health care users in the care of an admittedly delinquent provincial government’55
The arbitration resulted in information emerging about the decision to terminate the contract with Life Esidimeni and the implementation of that decision, the award of compensation to bereaved families and survivors, and regulations containing standards for the licensing of residential facilities catering to mental health care users.
Following the arbitration, the Gauteng Department of Health developed the Mental Health Recovery and Strengthening Plan, intended to reform mental health care provision in the province. The extent to which the plan has been implemented remains in question, with periodic reports of non-payment of NGOs and difficulties experienced by NGOs in complying with new licensing regulations, which require a very high level of care to be provided – beyond what is ordinarily expected within such facilities. Mental health services remain severely underfunded, with most of the funding concentrated at tertiary level rather than community-based care.
Health Market Inquiry
In November 2013, the Competition Commission initiated an inquiry into the private health sector in South Africa (the ‘Health Market Inquiry’ or ‘HMI’) to enquire into the high and rising costs of health care and whether any features in the private health care market prevent, restrict or distort competition.56 During its initial investigation, the Commission identified several features of the private health sector that could negatively impact competition and which had an impact on the determination of pricing, quality of service and health outcomes. These included information asymmetries, regulatory frameworks possibly undermining competition and monopolisation of critical areas of the market, including hospitals and medical schemes.
The HMI covered much of the private health sector, including hospitals and medical schemes, but also reviewed the regulatory frameworks, statutory bodies and the organisations representing health practitioners. The inquiry included submissions from a wide variety of stakeholders, including civil society. The focus of the civil society submissions was the framing of the HMI in terms of the right to health and the obligations that this right created for both the private health sector and government in regulating it.57
The HMI panel finalised its findings in September 2019.
In the final report, the HMI panel stated: ‘We have identified features that alone or in combination, prevent, restrict or distort competition. The market is characterised by highly concentrated funders and facilities markets, disempowered and uninformed consumers, a general absence of value-based purchasing, practitioners who are subject to little regulation and failures of accountability at many levels’.58
The panel recommended, among others, greater regulation of mergers in the sector, management of risk pooling through regulation, and the introduction of a standardised benefit option to be offered by all schemes that covered primary health care (PHC) services. The panel recommended the review of rules to promote multidisciplinary practices to give users access to improved care at lower cost.
Despite it coming at a reported cost to the fiscus of just under R200 million, the recommendations of the HMI have not been implemented. The opportunity to reduce some of the inefficiencies and inequities of the private health sectors was, therefore, not taken up.
Litigation
Development of the law in ways that may expand or contract access to health care services also occurs through litigation.
Emergency Medical Treatment
Section 27(3) of the Constitution provides that no one may be refused emergency medical treatment. One of the first cases relating to the right to health care services that reached the Constitutional Court was Soobramoney v Minister of Health KwaZulu-Natal 1998 (1) SA 765 (CC). This case was partly argued on the basis of the right not to be refused emergency medical treatment, but the court found that the treatment that Mr Soobramoney was seeking (renal dialysis in the final stages of chronic renal failure) did not constitute emergency medical treatment. The court decided against Mr Soobramoney and he died without the dialysis that he needed.
In 2016, the Constitutional Court was faced with another matter concerning the right not to be refused emergency medical treatment in the form of Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC). Mr Oppelt suffered a dislocation of vertebrae that compressed the spinal cord and interfered with blood supply, in the course of a game of rugby. The treatment required is to reduce the dislocation by stretching the spine and realigning the vertebrae. In one theory, if this treatment is applied within four hours of the injury, the chance of complete recovery is 64%. Mr Oppelt did not receive the treatment until more than 12 hours later and was paralysed from the neck down. He sought damages against the Western Cape Department of Health. Mr Oppelt was successful in the High Court, unsuccessful in the Supreme Court of Appeal, and successful in the Constitutional Court.
In considering the breach of the right of Mr Oppelt not to be refused emergency medical treatment, the majority judgment in the Constitutional Court found that ‘[p]roficient health care entails providing urgent and appropriate emergency treatment whenever a medical condition requires it’.59 In this case, the court found that the Western Cape Department of Health’s employees and their slavish adherence to a transfer protocol (that did not need to be so adhered to) was substantially short of the standard of practice that a member of the public is entitled to expect and caused the harm. The Western Cape Department of Health was ordered to pay damages to Mr Oppelt. The case has potentially far-reaching implications for access to emergency treatment and the obligations on the state.
Physician-assisted suicide and euthanasia
Although not decided on the basis of the right to access health care services, physician-assisted suicide and euthanasia are contentious issues involving health professionals and have been subject to litigation in the relevant period. In 2015, Robert Stransham-Ford, who was terminally ill, applied to the Gauteng High Court for an order permitting his physician-assisted suicide or euthanasia and protecting any physician who assisted him from prosecution. Fabricius J granted the order but declined to extend the possibility of lawful physician-assisted suicide or euthanasia to other cases. This meant that it was only those assisting Stransham-Ford who would be protected by the order.60 As it happened, Stransham-Ford died shortly before Fabricius J handed down his order, although the judge was not told this. The judge gave his reasons for the order some days later, by which time he knew that Stransham-Ford had died. Even though the order related only to Standsham-Ford, Fabricius J refused to recall his order on the grounds that his judgment has broader societal implications.
On appeal, the Supreme Court of Appeal (‘SCA’) set aside the High Court order,61 both because the issue before the court had been moot at the time of the order and because it found the order wrong in law. The SCA considered the possibility of a development of the common law in relation to physician-assisted suicide, as Fabricius J had ordered (but only in relation to Stransham-Ford), but disagreed that Fabricius J had evidence or the legal argument before him to consider this. The court found that the erroneous approach to the law in the High Court rendered it impossible to consider whether any limitation of a constitutional right was reasonable and justifiable in terms of section 36 of the Constitution.
While the SCA’s decision reversed the High Court order, this is not the end of the road for physician-assisted suicide and euthanasia. Another matter has been launched by two terminally ill people (one of whom is also a palliative care specialist) seeking the decriminalisation of physician-assisted suicide and euthanasia.
Medical negligence claims
Much of the litigation relating to health in the past five years has been in the form of claims for damages for medical negligence. In 2017, the South African Law Reform Commission released an Issue Paper on Medico-legal claims62 in which it laid out in some detail the problem with the explosion of medical negligence claims (in what they suggest is about poor treatment of patients, poor record keeping that makes it difficult to counter such claims, dishonest and predatory lawyers, and the impact on the health budget of ever-increasing medical negligence claims).
While it is not necessary to go into the detail of the reported cases in this period, it suffices to say that government has committed to taking various steps to curb such claims both relating to the health system (prioritising improvements in areas where claims are more prevalent and improving record keeping) and to the administrative and legal handling of such claims (through the Special Investigation Unit’s investigations into fraud and the strengthening of medico-legal units in provinces).63 Alternative means for dealing with medico-legal claims are likely to be an area of development in the coming five years.
A case study: What COVID-19 teaches us about the NHI
The NHI Bill, gazetted in 2019, is a significant legislative development concerning the right to health. The Bill envisages substantial health financing shifts with the pooling of public and private resources to improve equity in health service access.
Before the parliamentary discussion on the Bill could get underway, a pandemic that required intra-governmental cooperation, transparency and good governance, solidarity and collaboration between public and private health sectors hit our shores. Along with the devastation it brought, the COVID-19 pandemic provided an opportunity to test and advance some of the tenets of NHI and the reformed health system that it is intended to bring about. The extent to which this opportunity was taken up, and lessons that it may provide for legislative and health system change, are the subject of this final section.
South Africa’s NHI first started its legislative development with a Green Paper in 2011, outlining how an NHI would provide universal health coverage and expression of the state’s obligations to realise the right to health. Subsequent iterations through two White Papers (201564 and 201765) involving substantial public consultation processes, often highly contested and challenging,66 culminated in the gazetting of the NHI Bill in 2019.
Central to the NHI is the commitment to unlock access to care for people who lack resources to purchase care, and to bring the private sector’s resources into one harmonised system for population health care – with an emphasis on equity and the constitutional entitlement to access to health care services. The NHI Bill seeks to do this through the establishment of an NHI Fund – which would become the single payer for all covered health care services – and various structures that would determine what services would be covered, who would provide them, and how much would be paid for them. The Bill therefore encompasses a change to health financing as well as broader change to how the health system would work.
In relying on the pooling of resources (financial, human and other), NHI demands social solidarity. This is a significant shift from the current system in which those who can afford to do so can pay for their health services in the well-resourced private sector while everyone in South Africa contributes through tax to an under-resourced public health sector to cater to the vast majority of people in the country. It also requires coordination between the public and private health sectors where, for the first time at scale, a centralised fund would be used to pay private health care providers to serve people who would ordinarily be served by the public health system. Finally, the NHI envisages both centralisation and decentralisation of decision-making power in that the funds would be centralised in the NHI Fund, but local-level structures would decide on prioritisation of health services to be delivered and paid for by the Fund. This too represents a change from the current system in which, in the public sector, most decisions on service provision and funding are made at the provincial level.
If ever circumstances were to arise to test these foundational principles of a future NHI, the COVID-19 pandemic was it.
An easily transmissible virus, deadly in particular to vulnerable people, required individuals to take action in their own interests and also in the interests of others. Just as South Africans were asked to undertake practices to protect others at high risk or in need (e.g. quarantine and practicing non-pharmaceutical interventions to control COVID-19 spread) or to forsake personal benefits for a greater good (e.g. restrictions on freedom of movement and recreational opportunities), so too will the NHI be an
experiment in persuading South Africans to see their own best interest lying in solidarity with others, through the cross-subsidisation at national scale of the poor by the rich and the sick by the healthy.
Hospitals potentially running out of beds in the public and private sectors called for cooperation between those sectors. COVID-19 tested the state’s ability to harmonise the operations of the private sector under national leadership, as will be required for the NHI to work.
Moreover, a scared population needed both honest and good faith national stewardship and local-level action, just as under NHI, institutional arrangements and decision-making and implementation power are intended to shift.
So how did we do, and what does it mean?
Solidarity
To the extent that South Africans cooperated with lockdowns, quarantine, restrictions on recreational activities and non-pharmaceutical interventions to help contribute to the control of COVID-19, we saw the effect of short-term regulations significantly slow the expansion of the pandemic. However, there was also widespread resistance to many of these measures, particularly as pandemic fatigue set in and as the impacts on livelihoods became increasingly intolerable. Regulatory and programmatic interventions to enable adherence to these measures were only partial (e.g. social security support).
Low rates of mask usage in public despite high awareness and resistance from industry to lockdowns were evident, exacerbated by public anger over revelations of corruption in procurement of personal protective equipment (PPE).67 It was mainly non-state actors, operating outside of any regulatory support, such as community action networks,68 that were able to mobilise solidarity contributions at community level. Private sector actors (in collaboration with government) mobilised financial resources from business and the general public through a Solidarity Fund to enable flexibility in COVID-19 response.
Some of the solidarity deficit could have been remedied by decentralised delivery and control at the local level (as proposed under NHI), to facilitate a community-led response. State action to support communities was somewhat lacking, and there was weak utilisation of community participation structures such as health committees provided for in the National Health Act.69 Health committees and hospital boards will be essential to making NHI function in an accountable manner. A future NHI will have to achieve a better legislative solution for harnessing community-based action to address upstream determinants of health and accountability for quality care under UHC.
Transparency and corruption
The COVID-19 pandemic also illustrated clearly how transparency is key to building public trust in health systems70 – both private and public – required for achieving UHC.71 The meme of an inept72 or frankly criminal state73 undermines the willingness of people to commit to a system that requires social solidarity74 and belief in a state able to deliver quality care in an equitable manner.
The failure of systems to prevent corruption during COVID-19 has raised alarm bells about the ability of our health system to secure the integrity of a future NHI that will depend on large-scale contracting and procurement.75 Both widespread PPE-procurement corruption and the Digital Vibes scandal in which R150 million of spending intended for initially NHI and then COVID-19 communications was paid to
a company with alleged links to high-level National Department of Health (NDoH) officials, including the Minister, give us reason to be concerned about the safeguards in place to prevent corruption and mismanagement of funds.
Much of the commentary on the NHI Bill has highlighted deficient governance structures, particularly as they relate to the NHI Fund. Power is concentrated in the hands of the Minister and there are insufficient checks on this power, given the sums of money and decision-making requirements involved.76 There are various suggestions for the strengthening of the governance structures, including through securing the independence of the NHI Fund Board and the panel that appoints it; setting criteria for appointment; facilitating public participation in appointments; and tightening provisions for removal from or dissolution of the board. Appropriately defining the roles, membership and process for appointment of advisory committees is also an important step to improving governance and management of NHI funds.77
Government has itself recently published a governance arrangement for a proposed National Social Security Fund that meets many of the concerns raised about the governance arrangement contained in the NHI Bill. While it was withdrawn following a furore, the Green Paper on Comprehensive Social Security and Retirement Reform (2021)78 is useful for its detailed treatment of governance. The Green Paper lays out a structure for governance of the National Social Security Fund and processes for appointment of members, qualifying criteria, nominations, suspensions, and ways of ensuring that the board is independent of, while not being totally removed from, government and the Minister. It is an approach that should be used in amending the NHI Bill to better secure the integrity of the NHI Fund.
Transparency and the requirement of good governance also apply to the private sector and to the contracting arrangements79 that will be required under a future NHI. As Jerome Singh points out in relation to managing the COVID-19 epidemic, ‘all relevant information about a pandemic and its decision-making processes ought to be communicated or made accessible to the public to uphold its trust’.80 The same principles apply beyond COVID-19 to the NHI introduction.
Public–private collaboration and stewardship
With regard to the state stewardship role, the COVID-19 experience was also somewhat uneven.
Responding effectively81 to COVID-19 required a strong, coordinated and integrated health service at its centre.82 Use of the disaster management regulations presented an opportunity to lay the basis for the operationalisation of centralised funding that could have facilitated better coordination and contracting of private sector actors. However, efforts to negotiate contracts with the private sector and to share resources across one platform were only of limited success, despite it being described as a ‘learning lesson’83 by a senior NDoH official. Reportedly, key lessons included a failure to reach agreement on pricing, and the obstacle posed by the inherent fragmentation of the private sector, which includes independent hospital groups on the one hand and individual practitioners who deliver services in these hospitals on the other. Paradoxically, regulations issued by the Minister of Trade and Industry to respond to the emergency and which provided for exemptions from measures in the Competition Act84 to allow private health care actors to enter agreements or practices to assist control of the pandemic may have served as a disincentive to collaborate. Legislative framework and the right to health 2015-2020
As a result, negotiations with the private sector were conducted on a province-byprovince basis with only one province managing to complete negotiations. Any intention to bring the public and private health sectors together as one coordinated and centrally managed health service, which was effected in Ireland and Spain to differing extents,85 could not be implemented in South Africa, where public–private inequalities remain persistent determinants of health outcomes. In line with this, Jassat et al. investigated COVID-19-related mortality in hospitalised cases and reported significant differences in mortality rates in publicly funded facilities, with deaths in the public sector often occurring within three days of admission, pointing to delayed access to care impacting on increased risk of death.86 The inequity of the health system inevitably translated into inequity in health outcomes.
Cairncross and colleagues warned that during COVID-19 joint coordination could not take the form of ‘renting’87 high care and ICU beds at rates solely determined by the private sector when there is a desperate and urgent need. Identifying what has been described as ‘a tolerable margin’ of profit88 that is also fair and which will not bankrupt the public health system remains a key challenge for future NHI implementation and its regulatory framework. To what extent the state will be able to steward a unified health system across public and private providers, making choices that may not be palatable to some influential actors, remains to be seen.
Inter-governmental relations
In addition to requiring cooperation between public and private sectors, the NHI is premised on inter-governmental collaboration under changed powers and functions. Under NHI, a centralised single payer is established to purchase services, while district-level structures will decide on the prioritisation of services locally. Provinces will likely be delegated some of the service-provision obligations that they currently hold. Such changes in functions constitute a big change from the current decision-making and implementation model and envisage the simultaneous centralisation and decentralisation of power and function.
The COVID-19 experience has alerted us to the possible pitfalls of the kind of decentralisation and centralisation that we are likely to see under NHI. Loosening of public sector finance management procedures intended to facilitate decentralised flexibility in urgent purchasing of PPE was exploited by unscrupulous predators to enable looting of public funds. Highly centralised decision-making simultaneously led to slow initial roll-out of vaccines, opacity in decision-making and limited scope for public participation across all aspects of the COVID-19 response.
That being said, centralised price setting for medicines and devices, as anticipated under NHI, could have limited the price inflation that we saw in the purchase of PPE.
COVID-19 demonstrated both the shortcomings of a divided and inequitable health system and the difficulty that we will have in changing it through law. We will need a regulatory framework that works to reduce rather than entrench inequality, by requiring transparency, fostering participation and building trust; exercising stewardship over what should be a single health system; and clarifying (having properly tested) power and decision-making structures. South Africa should use the pitfalls and lessons of COVID-19 to inform legislative change (and the mobilisation and buy-in that must go with it) on NHI and the move to UHC.
Conclusions and way forward
While not a period of much legislative development, 2015–2020 has seen various changes to health and the health system brought about through legal advocacy, litigation and some legislative and regulatory change. It is also a period from which many lessons can be learned: the need for Intellectual Property law change to secure access to medicines and vaccines; the urgency of emergency medical services reform and the reform of the private health sector; the benefit of NCD control; and the risk of poor policy implementation (including to the lives of vulnerable people). The failure to progress some important legislation on social determinants of health is also instructive for efforts to strengthen the health system in the future. COVID-19 provided an unwelcome but perhaps useful test of some of the principles of NHI: a potentially system-changing legislative change in the next five years. The law is not the sole determinant of health. It cannot create the kind of health system that South Africa needs to realise the right of access to health care services. However, in combination with advocacy, activism and the contributions of those both in and outside the system, it can contribute to that aim.
References
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35. https://www.gov.za/sites/default/files/gcis_document/201808/ippoli cy2018-phasei.pdf.
36. Much of the advocacy and activism on Intellectual Property law reform has been led by the Fix the Patent Laws Coalition, a broad coalition of health rights focussed civil society organisations. For a full list of member organisations, see https://www. fixthepatentlaws.org/
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86. Jassat et al. Increased mortality among individuals hospitalised with COVID-19 during the second wave in South Africa. 2021. Available from: https:// www.medrxiv.org/content/10.1101/2021.03.09.21253184v1.full-text.
87. https://www.dailymaverick.co.za/article/2020-04-22-it-is-urgent-to-integratesas-private-and-public-healthcare-systems-now/
88. https://mg.co.za/special-reports/2020-11-04-nhi-and-covid-19-lessons-fromthe-pandemic-and-the-way-forward