Access to health care forms part of the socio-economic rights which are entrenched in the Constitution . In relation to access to health care, the application of socio-economic rights are subject to the availability of resources .
In this essay I will discuss the developments in South African law with regards to the Constitution , focusing on discrimination and the right to life, in terms of access to health care in South Africa. I will provide examples in terms of case law and legislation to illustrate the attempts made to increase access to health care in South Africa.
Section 27 of the Constitution outlines the right to health care, it states the following:
27. Health care, food, ...view middle of the document...
We have seen the availability of resources limit the access to health care, now we will look at the impact of section 36 of the Constitution , the limitation clause, on the access to health care. This concept is lustrated in the Treatment Action Campaign and Others v The Minister of Health and Others 2002 TPD (unreported). The applicants sought an order against the Minister of Health to compel him to implement an effective national programme to prevent or reduce mother-to-child transmission of HIV, this involves dispensing Nevirapine to HIV infected mothers and their babies. The court ordered that if properly planned, it would be effective and ordered the respondents to come back to court three months later and report back on the status of their planning. This case is important because section 36 of the Constitution could not be applied as this case does not involve the law of general application to infringe rights . Due to the impact of this case many transmissions were prevented and access to health care improved.
Other statutory examples of access to health care that has been put forth is section 9 of the Constitution prohibiting unfair discrimination, which includes the ground of disability. The interpretation of this clause could lead to the reasoning that the Constitution , in turn protects for example, persons who are discriminated against on the basis of epilepsy. The Americans with Disabilities Act defined disability as an impairment that substantially limits a person in his or her major life activities .
The Promotion of Equality and Prevention of Unfair Discrimination Act gives statutory form to the right outlined in section 9 of the Constitution . Disability forms part of the comprehensive list of grounds on which discrimination is directly prohibited although it is not regarded as a psychiatric disorder . Section 9 of the Promotion of Equality and Prevention of Unfair Discrimination Act prohibits discrimination on the ground of disability which includes: denying a disabled person any supporting facility necessary for his or her functioning in society and, failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons. This statutory provision further validates the improvement of...