Developing a constitutional law paradigm for a national health insurance scheme in South Africa

[摘要] The proposed National Health Insurance ('NHI’) is the most extensive health policy initiativeproposed by the South African government since 1994, to bridge the divide between theprivate and public health sectors. It is intended that the NHI will fund health care services forthe entire population. Yet, despite its laudable goals, the implementation of NHI might bestalled by litigation concerning its constitutionality. In this thesis, I construct a constitutionalparadigm within which such challenges can be understood. Departing from the premise thatthe Constitution places a positive obligation on the state to implement redistributive policiesin the health sector in order to progressively realise the right to have access to health careservices, the thesis identifies the tensions underlying the proposed implementation of NHIand 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 carereform in South Africa and debates on the desirability of NHI. The thesis then investigatesand sets out the constitutional principles, values and standards embodied by the rights toequality, freedom and security of the person, and access to health care services, and considersthe 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 ofNHI may cause to current beneficiaries of private sector health services. It is argued thatthese adverse consequences will, for the most part, not justify a finding that relevant featuresof NHI are unconstitutional. This is either because they will not amount to an infringement ofthe relevant constitutional rights or because such an infringement will be capable ofreasonable justification in terms of the general limitations clause. Only where the impairmentof existing rights is disportionate or is related to some extraneous purpose inconsistent withconstitutional rights and values will NHI not pass constitutional muster. Ultimately, theconstitutionality of different features of NHI will depend on how the rights of those whoalready have access to health care services under the current health financing system arebalanced with those who currently lack such access.

[发布机构] University of the Witwatersrand