Developing a constitutional law paradigm for a national health insurance scheme in South Africa
Date
2014-08-21
Authors
Wayburne, Paul Allen
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Abstract
The proposed National Health Insurance (‘NHI’) is the most extensive health policy initiative
proposed by the South African government since 1994, to bridge the divide between the
private and public health sectors. It is intended that the NHI will fund health care services for
the entire population. Yet, despite its laudable goals, the implementation of NHI might be
stalled by litigation concerning its constitutionality. In this thesis, I construct a constitutional
paradigm within which such challenges can be understood. Departing from the premise that
the Constitution places a positive obligation on the state to implement redistributive policies
in the health sector in order to progressively realise the right to have access to health care
services, the thesis identifies the tensions underlying the proposed implementation of NHI
and aligns these to liberty-based and equality-based understandings of the right to health,
respectively. This analysis takes place after having considered the history of health care
reform in South Africa and debates on the desirability of NHI. The thesis then investigates
and sets out the constitutional principles, values and standards embodied by the rights to
equality, freedom and security of the person, and access to health care services, and considers
the extent to which current the formulation of the proposed NHI adheres to these principles.
Potential constitutional challenges to NHI by private sector interest groups are identified.
These challenges are primarily concerned with adverse effects that the implementation of
NHI may cause to current beneficiaries of private sector health services. It is argued that
these adverse consequences will, for the most part, not justify a finding that relevant features
of NHI are unconstitutional. This is either because they will not amount to an infringement of
the relevant constitutional rights or because such an infringement will be capable of
reasonable justification in terms of the general limitations clause. Only where the impairment
of existing rights is disportionate or is related to some extraneous purpose inconsistent with
constitutional rights and values will NHI not pass constitutional muster. Ultimately, the
constitutionality of different features of NHI will depend on how the rights of those who
already have access to health care services under the current health financing system are
balanced with those who currently lack such access.
Description
Thesis (Ph.D.)--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Law, 2014.
Keywords
Health insurance, National Health Services, Medical policy, South Africa