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Chapter 1 Research Paper

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Chapter 1 Research Paper essay

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Chapter 1:Historical Background to the Study A right of access to healthcare services is among the economic and social rights guaranteed by the Constitution of South Africa, which is the supreme law of the country.

During the Apartheid regime only white people were considered as human beings, therefore the laws of that time only favoured the whites whilst on the contrary oppressing black people. Access to health care services in SA, and other basic essentials, historically has been thrown off balance in terms of race, gender, socio-economic status, sexual orientation, disability and a number of other autocratic grounds. Systems, structures and institutions entrenched to deliver health care services have historically indicated and continue to indicate an unbalanced biasness in condemnation of superior groupings in South African society. The racist and oppressive apartheid regime blunted itself in every strand of health. Black people didn’t have equal rights to white people; and as a result even today black people are still suffering the consequences of the Apartheid Regime. Inequality is still a major issue in the present moment.

The Constitution of the Republic of South Africa was created to heal the past injustices imposed by the Apartheid Regime; therefore the rights contained in the Bill of Rights are of paramount importance and must be prioritised. The health care system of South Africa is combined into two tiers, namely; the private sector tier, which is founded on the free market model, providing excellent and efficient healthcare services to the wealthy and primary healthcare tier providing poor and bad health-care services to the needy, dominating in the rural areas. A person can only get access to health care services in the private sector if he/she possesses a medical aid cover or can be able to pay large amounts of cash for services rendered by that particular private hospital. 1. 2.Problem Statement The structure of the system of health in SA, which is a fusion of Private sector based on the free market model mainly serving the rich and primary healthcare, is problematic as it leads to the gaps of quality health care services to the population of South Africa and the problems of inequality and the constitutional right to access to health care.

1.3. Significance of Study The gist of the study lies in the investigation of whether the privatisation of health care services in South Africa encroaches on the constitutional right of access to health care and the states duty to realise the right of access to health care. 1.4. Aims and Objectives of Study The work aims at evaluating and assessing the structure of the health care system of South Africa together with the nature, scope and content of the right of access to health care. The purpose of this research is to ensure that the state takes reasonable measures aimed at realising the right of access to health care (the universal access to health care to be more precise).

The aim of this research is to investigate the extent and ways in which privatization of healthcare services affects the poor and how can the state alleviate this problem. 1.5. Research Questions • What is the effect of the privatisation of healthcare services on the right to access to healthcare? • Does the state have any roles and obligations to effectively realise the right of access to health care and if yes, what are those roles and obligations? • Are health care services obtainable, affordable, and if so are these services of good quality or bad quality? 1.6. Research Methodology Considering the nature of the research topic the study will focus on the qualitative method, where the researcher will make use of journals, articles, case law, electronic resources, books and newspaper. 1.7. Outline of chapters Chapter 1: Introduction and Background of Study The researcher in this chapter will provide an introduction and background to the study.

It epitomises the purpose of the study, the aims and objectives. The researcher will also posit the methodology used to conduct this study. Chapter 2: The right to have access to health care in South Africa In this chapter the researcher will have a general inspection of the nature, scope, content and degree of the right to have access to health care services. It will discuss the degree as to which the courts have interpreted the right to have access to health care services.

The researcher will also inspect the nature of constitutional provisions. Chapter 3: The impact of privatisation of healthcare services on the right of access to health care Privatisation of health care services has an effect on both the proclamation of the values on which efficacious cognizance of the right of access to health care rely on and the institutional ability of the government to device the right of access to health care approach. In this chapter the researcher will discuss in detail the effects or impact that the privatisation of health care has on the right of access to health care Chapter 4: The State’s roles and obligations to safeguard progressive realisation of the right of access to health care The margin between the private and public health sector, the scarcity of health care resources affects the way in which the state realises and protects the right to health care. The issue of prioritisation to realise this right is also in question. This chapter outlines the role of the state in ensuring successive realisation of the right to access health care services.

Chapter 5: Comparative study of the structure of the health care system in South Africa versus that of Ghana. In this chapter the researcher will provide the reader with the comparative analysis of the type of the Health care system that these above mentioned African countries use. This chapter will further undertake to investigate how the health care systems of these countries came about, how they were implemented and the challenges they faced when structuring their health system. Chapter 6: Recommendations and Conclusion The researcher will identify problems throughout the chapters. The researcher will include in the conclusion of the study recommendations which will provide ways in which the right to health care can be fulfilled in ways which it will not be contrary to the constitutional values.

This chapter will thus include both recommendations and conclusion. ? Chapter 2: The right to have access to healthcare in South Africa 2.1. Introduction: The background of South African Health System The history of the South African health system dates back to the Apartheid era, where South Africa was governed by Parliamentary Sovereignty. During this era there was no separation of powers, black people and women were not allowed to vote.

The government of that time oppressed black people, they posited unjust laws whereby they were not allowed to challenge the laws they were compelled to abide by these laws. The health system was structured in a racially discriminatory way to exclude black people from accessing private healthcare, the government hospitals and clinics in urban areas were only available for use to white people. Black people were forced to access healthcare in townships and rural areas, where the quality of healthcare was poor. Resources were allocated disproportionately by the state at a systematic level and this led to poor and inferior services made available to the African race.

They did this because the natives didn’t have equivalent rights to them particularly human rights. The dawn of democracy around 1994, brought about change and transformation, black people were now allowed to vote and as a result the public healthcare system of South Africa went through tremendous transformation. This transformation was brought about by the establishment of the Constitution which contains the Bill of Rights (herein referred to as BoR), this Constitution became the supreme law of the country and that was the end of Parliamentary Sovereignty. Legislative measures were also put in place to complement the BoR in the Constitution in order to guarantee the right of access to healthcare.

The BoR affirms the injustices of the past, and places an obligation on the state to work with the goal to the progressive realization of basic human rights and that of course includes amongst other things the right of access to health care. 2.2. The Constitutional Provisions and Legislative Framework 2.2.1. The Constitutional Provisions The SA constitution, assures the right of access to healthcare which is embodied in the BoR. The right of access to healthcare forms part of socio-economic rights, the provisions of the Constitution related to socio-economic rights necessitates the State to take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of socio-economic rights. There are a lot of sections in the BoR which complements the right of access to healthcare, they are set out as follows; Section 27(1) (a) sets out pervasive access to healthcare services and it also covers reproductive healthcare, s 27(3) stipulates that ‘no one may be refused emergency medical treatment’.

s 28(1) (c) is specifically created for Children’s rights to ‘basic healthcare services’, whereas, s 35(2) (e) bestows ‘adequate medical treatment’ for detainees and prisoners at the state’s expense. . Academics, authors and Courts prescribe the manner in which these rights, particularly the right of access to healthcare must be applied and interpreted. According to C.

Ngwena(2000), s 27(1)(a) must be construed in the frame of reference of other rights which according to the author, forms the latent determinants of health because these rights are inseparable and connected to each other just like how the Vienna Declaration stipulates. One can ask himself why we need to construe the right of access to health care with the frame of reference to other rights?. The following paragraphs will provide answers to this question”. The first answer to the above question is that s 27 is equable in terms of inclination since it supplements s 9 of the Constitution. Moreover, s 27 strives to procure not solely conventional equality but also essential equality. S 27 grants not solely a negative right in terms of which the state or human beings ought to desist from obstructing one’s right to obtain healthcare services”.

The last answer is that s 27 imposes a positive right to obtain healthcare from the State in the sense that it constitutes an apprehension that obtaining health for everyone is an essential part of acquiring justifiable opportunity in a democratic country”. 2.3 The Scope of the right of access to healthcare Generally speaking the BoR was created to serve as a mechanism for the protection and enforcement of basic human rights against the state, for the state not to abuse its authority and power. The right of access to healthcare is codified in the BoR, to understand its scope and content we have to investigate its application, how is it enforced and to whom is it enforced against”. C Ngwena (2000) provides that ‘the right of access to healthcare is applied horizontally and vertically’.

With regards to the horizontal application, the right of access to healthcare is enforceable against private persons. With that being said, this right can be enforced against the private healthcare sector by private persons, because they also have a mandate to offer healthcare services by virtue of the structure of the health system since it is a mixture of both the private sector and the public sector and by virtue of the provisions of section 27 of The Constitution”. Different authors expressed their perspectives on the horizontal application of this right. C Ngwena (2000) is of the view that the importance of the application of section 27 is the notion that it depends on private persons.

He provided his reasons as follows; ‘he claims that the state possesses the permissible interest in the exclusive control over the distribution of social goods’. He contends further that, ‘the private sector which is more focused on making profits is not suitable to fulfil social needs’. He also claims that ‘the language used in this section it’s not definitive with regards to the quantity or quality of healthcare services to be accessed'”. The vertical application of this right is based on the relationship between the state and individuals. Some authors are of the view that if we were to apply section 27 vertically, it will raise false hopes to individuals. Section 27 is to be understood in the context of progressive realisation which means that the state when carrying out this duty cannot provide healthcare services to individuals immediately, it will be directed and guided by time constraints and therefore the state will thus provide healthcare services within the availability of resources”.

2.4 The Normative Content of the right of access to healthcare The normative content of the right to healthcare, based on the notion that this right is equal to all, and that it is non-discriminatory was defined in The General Comment No.14. The committee claims that this right must be made available in adequate quantity; everyone must be able to access it physically and be able to afford healthcare services. The General Comment No.14, provides that the right to equality of healthcare services requires that vulnerable groups should enjoy the special protection of this right. 2.5Case Law Our courts have played an imperative role in formulating the content of the right of access to healthcare. The researcher will provide different cases to show how the courts interpreted this right. The following cases were summarised by S Khoza(2007).

2.5.1. Minister of Health and Others v Treatment Action Campaign 2004 (5) SA 721 (CC). This case dealt with the right of access to health care. The appellants in this case was Treatment Action Campaign , they disputed the restricted nature of government procedures initiated to thwart mother-to-child transmission of HIV on two grounds”. They disputed that the government forbidden administering of the antiretroviral drug, nevirapine unfairly, at public hospitals and clinics, except for a restricted number of pilot sites. The Government had not produced and executed the whole national program for the prevention mother-to-child transmission of HIV.

Court Decision The court of first instance and the Constitutional Court applied the test of reasonableness which was recognized in Government of the Republic of South Africa v Grootboom 2001(1) SA 26 (CC) and determined that the Government’s program did not conform to the right of access to health care services and the duty to take reasonable measures under s 27(2) of the Constitution. The Constitutional Court came up with a new aspect of reasonableness which provides that the Government must be transparent and permit for the participation of a number of stakeholders in the execution of the program. 2.5.2.Government of the Republic of South Africa and Others v Grootboom and Others 2001(1) SA 46 (CC) This case dealt with the right of access to adequate housing. The appellants relocated to a private land from an informal settlement because of the dire environment in which they lived, the appellants were evicted from the private land and their building materials were shattered. The appellants made an application to the High Court for an order in opposition to all three spheres of government to be provided with preliminary shelter or housing in anticipation of they obtaining a permanent place to stay. Their argument was based on the right of access to adequate housing in s 26(1) and the right of children to shelter in s 28(1)(c) of the Constitution.

Court Decision The Court of first instance elucidated that there was only an infringement of the right of children to shelter and not the right to adequate housing. On appeal, the Constitutional Court did not agree with the interpretation of the court of first instance of children’s right to shelter. But, it then decided that the Government’s housing program did not conform to the duty to take reasonable steps. The court claimed further that the provisions of s 27.

The Constitutional Court developed a standard of reasonableness as a guide line to decide if the Government’s program meets constitutional requirements. The Constitutional Court provided the following: The program should be well founded, logical and harmonized, It must be able of “facilitating the realization of the right” It must be fair and flexible, and appropriately offer for short average, and long-term needs. It has to assign responsibilities clearly and also assign duties to diverse spheres of government and make certain that financial and human resources are made accessible .It must be reasonably conceived and executed, It must advance the needs of those most defenseless by providing help for citizens who cannot access land, no shelter, and who are living in poor conditions”. 2.5.3.Soobramoney v Minister of Health Province of Kwazulu-Natal 1998 (1) SA 765 (CC).

Facts of the case This case adjudicated on the issue involving the right of access to health care. The appellant (Mr.Soobramoney) was not employed at the time he suffered from chronic kidney failure. The appellant sought relief from the court to instruct the provincial hospital to allow him to continue with dialysis treatment and to prohibit the provincial Minister of Health from denying him access and utilize the renal unit of the hospital”. He claimed that if he doesn’t continue with his treatment, his life will be terminated. He based his argument on the right to life which is set out in s 11 of The Constitution and the right to emergency medical treatment which is provided in s 27(3) in the Constitution”.

Court Decision The Constitutional court dismissed Mr.Soobramoney’s claim based on the following reasons: The court claimed that his claim was not applicable within the spectrum of “medical emergency treatment” reason being that his situation was not a case of an unforeseen crisis. The court claimed further that the court could not be expected to offer treatment to everyone like the appellant”. The court rationed its decision on the fact that the hospital applied its guidelines for deciding who can access the dialysis treatment in a just and reasonable basis. 2.6 Conclusion The Constitution is the basis of democracy; it recognizes the rights in the BoR. It promotes justice and equality; however these rights are interpreted in different ways by the courts. When this research was conducted, it was discovered that authors, academics and courts had different perspectives about the interpretation of s 27.

The researcher is of the opinion that the meaning of the content of s 27 is weak, vague in the sense that it promotes the state to escape its obligation to fulfil the realization of the right of access to healthcare. The wording of “progressive realization” encourages the state to prolong the realization of the right to healthcare; the state uses this wording to evade prioritising the fulfilment of this right. The state also uses the word “availability of resources” to avoid its mandate to realize the right of access to healthcare which falls under the spectrum of socio-economic rights. The state must give this right a sufficient meaning; this right must be absolute in nature. Chapter 3: The Impact of Privatisation of Health Services on the Right of Access to Health Care. 3.1.

Introduction: The Evolution of Privatisation of Healthcare Services According to Pietermaritzburg Agency for Christian Social Awareness (PACSA) the dawn of the privatisation of healthcare services was a market response to the great failures in service delivery and declining standards in the public healthcare sector. The history of SA’s health system has seen government mostly consider healthcare as a private accountability apart from contagious diseases which have foremost externalities and apart from responsibility for the underprivileged through direct provisions or miners through regulation. The author alludes further that it was for this reason public services were never developed for the universal population, with income earning groups compelled to pay for the utilization of public hospital services, a minimum fee was also required from non-hospital based publicly provided primary care services. The private healthcare sector developed as a reply to the government’s focal point on providing public healthcare services only to those members of the population who were incapable of paying healthcare services. 3.1.1. Definition of Privatisation Generally, privatization can be described as the process of transferring a business, industry, or service from public to private ownership and control.

A formal definition is provided for by H.C.J van Rensburg& A Fourie(1988)where the authors stated that: Privatization represents the introduction or additional expansion of market principles in the public social services. It may be said to take place when accountability for a service or a specific feature of service delivery passes, wholly or in part, to the private sector and when market criteria, such as profit and aptitude to pay, are used to ration or dispense benefits and services. 3.1.2. Factors Influencing Privatisation of Healthcare Services There are many factors that influence the privatization of healthcare services, however the researcher will focus on three major contributory factors and they are set out as follows; According to A Chapman (2014) the first and most major factor influencing the privatisation of health services is ‘the introduction of neoliberal ideas as functional to health care sector policy’. Neoliberalism, at times referred to as market fundamentalism, illustrates a set of policies that are in favor of reduction of the responsibility of the state in the provision of social services, a reduction in state budgets, rigid restrictions on public healthcare expenditures, deregulation of markets facilitating the entry of corporate health business to function more freely, the burden of user fees even in the poorest countries, and the transfer of social services formerly provided by the state, as well as healthcare to the private sector. The second contributory factor set out by A Chapman (2014) is the consumer preference.

According to Chapman ‘consumers may favor private services because they deem that they will gain access to enhanced quality of care or flee from long waiting lists and other unpleasant patient conditions. 3.2. The Advantages and Disadvantages of Privatisation of Healthcare Services 3.2.1. The Advantages of Privatisation of Healthcare Services Even though the researcher is of the opinion that privatization of healthcare services is a hindrance to the right of access to healthcare, there is a good side to this phenomenon.

M Young(2016) sets out the advantages of privatization of healthcare services as follows; the fact that the majority of the people cannot afford to pay the expensive medical fees at the private hospitals, the waiting times for consultation with the doctors is considered to be short, the services are of the best quality, there are better healthcare facilities, sufficient resources are accessible to everyone, appointments are not rushed and appropriate disease control and deterrence practices are utilized. 3.2.2 The Disadvantages of Privatisation of Healthcare Services It was indicated in Factsheet No. 49 Privatisation that, privatisation of healthcare services leads to increase in their cost, the underprivileged will suffer as they are unable to afford to pay for healthcare services. It reduces the accessibility of healthcare services. With regards to working conditions, most unions claims that the privatization of healthcare services leads to a decline in working conditions because most outsourcing of state roles goes to non-union companies.

These companies are known for lesser rates of pay, lesser benefits and longer hours of work. Privatisation of healthcare services is also said to amplify the power of big business than encouraging more equality. This is because nearly all resources of state hospitals that are being privatised are bought by big business. 3.3 How Privatisation of Healthcare Services Affect the Right of Access to Healthcare The World Health Report (2000)’provides that the health of the universal population of a nation relies on part on access to health care’. Chinwe C &ObuakuI claims that at present SA is rated as a country with the utmost inequality of healthcare.

According to the study of B Harrisa, J Goudgea, J Ataguba, D McIntyre, N Nxumaloa, S Jikwana & M Chersich (2011) it was indicated that Socio-economic status, ethnicity, medical insurance status, and residential including both urban and rural were associated with access to healthcare, the results in their study indicated further that of all those typically affected by poor access to care, poor people, rural dwellers, uninsured and the natives faced the most barriers access to care. A Chapman (2014) claims that ‘privatised healthcare affects both the expression of the values on which efficient realisation of health rights rely on and the institutional capability of the government to realise a right to health approach in the following ways. The author illustrates that solidarity affects the ability of the government to realise a right to health in the following way, the author claims that the support for a human rights approach to health may rely on a strong sense of societal solidarity. A Chapman alludes further that privatisation inflate the human rights responsibility of the state to guard its populace from contraventions of human rights by private health providers. The state will thus be required to presume diverse and supplementary composite functions than the government’s former functions.

Chapman indicated that accountability is moreover complex to realise in a diverse health system. Human rights law posits duties on states, not on private actors. According to theory, the regime is liable for making sure that the private sector functions in a way that is constant with human rights values however in actuality, it is frequently hard for the government to do so. In a lot of cas¬es, the private health sector comprises of a very great number of players and establishments private health providers. 3.4 Conclusion Even though privatization of healthcare services has a positive impact on the economy, poor people are disadvantaged simply because medical fees are expensive.

Hybrid health systems with health care provision and financing divided into public and private sectors facade important issues for the realisation of a human rights approach. And as a result this raises the issues of inequalities in the country. Privatization of healthcare services does not benefit the poor. Chapter 4: State’s roles and obligations to safeguard progressive realisation of the right of access to healthcare.

4.1. Introduction By virtue of the concept of separation of powers, the country is operated by the government, the president being the head of the state, and citizens depend on the government for the distribution of social goods and services and because of that, the State plays a crucial part in the distribution of social goods and services and because of their role in the society, the judiciary must make sure that if they fail to satisfy their obligations they must account to the society. In this chapter the researcher shall explain in detail what is the role and obligation of the state to safeguard the progressive realization of the right of access to healthcare. 4.

2. The Roles and Obligations of the State in Safeguarding the Progressive Realisation of the Right to Healthcare. The constitution provides for the right to healthcare in s 27and other socio-economic rights. This section amongst other things sets out the obligations which binds the state, in addition, International Conventions also provides those obligations and recognizes the right to healthcare.

Obligations can be described as a duty vested on a party in a contract to fulfil the terms agreed upon by the parties. The constitution is a contract between the state and citizens; however this research focuses on the Bill of Rights. The state afforded everyone particular rights, which it bound itself to fulfil and realise. Guidance is provided for by International Conventions such as the International Covenant on Economic, Social and Cultural Rights (herein referred to as ICESCR) in Article 12 where it was suggested that the right to health must be comprehended as a duty that is vested on the state to cater for a diversity of facilities, goods, services and the state of affairs indispensable for the realization of the ‘highest attainable standard of health’. Now what are these rights duties that the state needs to fulfil?L London & L Baldwin-Ragaven(2006) provides that ‘the state has four duties relative to the right of access to healthcare services namely; the duty to respect, the duty to protect, the duty to promote and lastly the duty to fulfil that right’.

They explain in detail what these duties imply and what they entail. According to L London & L Baldwin-Ragaven(2006) the duty to respect entails that, ‘the state and health professionals should desist from indulging or engaging in anything that encroaches indirectly or directly with the enjoyment of the right to health’. Like for instance, refusing to treat a patient because of the colour of his or her skin, race or gender. L London & L Baldwin-Ragaven(2006)claims that this duty requires the state to take appropriate measures to make certain that no other persons encroaches on another person’s right. The obligation to promote the right to healthcare on the part of the state requires the state to provide information to citizens so that they have knowledge about their right, in order for them to be able to claim and enforce that right. The state must thus, make information accessible to everyone, so that they can be in a position to decide what is best to their interests.

The duty to fulfil health rights requires the state to provide adequate budget, judicial and administrative policies to guarantee the progressive realization of the right to health care L.London & L.Baldwin-Ragaven (2006). They are vested with the obligation and power to establish health facilities, such as clinics together with health professionals in addition to device transport for patients such as ambulances. K. Moyo (2016) has approached the issues pertaining to the role and duties of the state to guarantee ‘progressive realisation of the right to healthcare’ in a jurisprudential perspective of socio-economic rights. While the duty of the state is measured through the reasonableness test instead of rationality, the researcher will investigate the duty of the state regarding accessibility of healthcare services. This is so because of court decisions in particular the constitutional court decisions.

According to K Moyo (2016) the constitutional court in the case of Government of the Republic of South Africa v Grootboom , emphasised that ‘the state has a duty, within its available resources to offer provisional shelter for those who have been evicted or face forthcoming eviction and cannot find another shelter with their own resources’. It is submitted that this duty entails a positive duty on the part of the state, in the sense that, in certain situations, in most cases, emergency cases . The state is required to act positively towards affording citizens an appropriate immediate relief. The state is not only vested with positive duties, the duty of the state also entails a negative duty. This was reflected in the case of Jaftha v Schoeman,VanRooyen v Stoltz, this case dealt with socio-economic rights whereby the court gave a substantial explanation of the underlying meaning of negative duties within the realm of s 26 and the implication of s 27 of the constitution. What can be deduced from Jaftha v Schoeman’s case is that, just like cases dealing with civil and political rights posit negative obligations on the part of the state, and if encroached upon can lead to litigation in court.

According to K Moyo (2016) if it happens that the state through its demeanour or legislative measures takes away the existing access to socio-economic rights, such demeanour or legislation will be perceived as at first sight before further examination of the case that this demeanour is in contravention s 27 of the constitution. The author further contends that the burden will reallocate the state to validate such demeanour or legislation in terms of the universal limitation clause section 36 of the constitution. Another duty is the duty to engage eloquently with the citizens. The case of Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg reflects what this duty entails. The constitutional court emphasised the basic principle that when dealing with certain cases whereof people are challenged with destitute conditions by virtue of an eviction order, the government must engage with good intentions with compassionate and realistic resolutions regarding their dilemma. Another author Biltcitz (2002) provides that ‘an examination of obligations imposed by the state must involve a minimum core obligation to realise without hindrance, the most vital survival interests’.

His stance is that the acknowledgment that the state has a minimum core obligation to realise crucial levels of each right correspond to a feasible and principled technique of approaching the justiciability of socio-economic rights. Therefore, each substantive right inflicts upon a state a range of core obligations that the state is compelled to fulfil. 4.3.Conclusion It was indicated in this chapter that citizens solely rely on the state for the distribution of healthcare services, in other words the state is vested with the powers and duties to execute the mandate of social services, in particular healthcare services. What could be more effective according to the researcher’s opinion is the concept of minimum core obligations with regards to the obligations vested on the state to ensure that it executes its mandate in a just and equitable manner.

This will push the state to prioritise health needs of the citizens. Chapter 5: Comparative study of the structure of the healthcare system in South Africa versus that of Ghana 5.1. Introduction The infrastructure of Ghana’s healthcare is genuinely constrained particularly in rural areas, although the government of Ghana is gaining ground in enhancing human services, healthcare facilities remain congested and immensely underfunded. Crisis restorative administrations in Ghana are nearly non-existent. This is the same position in South Africa; access to healthcare in African countries is still problematic.

However, Ghana is a step ahead in terms of achieving universal health coverage as compared to South Africa and other African countries. This is so because Ghana implemented National Health Insurance Scheme, whereas it is a different story when it comes to South Africa simply because the National Health Insurance Scheme is a proposed Bill. 5.2. The Healthcare System of Ghana According to J Awoonor-Williams,P Tindana, P Dalinjong, H Nartey & J Akazil the Ministry of Health is the one that is in charge of the administration of Ghana’s healthcare system and along these lines it is vested with the ability to as a rule strategy headings. However the Ghana Health Service is the one that is vested with the sole powers to operate health policies.

A Salisu & V Prinz(2009) provides that Ghana’s healthcare system is prearranged in four core groups of delivery systems: public, private-revenue driven, private-not-for-profit and traditional systems. How is the public healthcare sector operated? According to A Salisu & V Prinz(2009)The public healthcare system of Ghana is run through the National Health Insurance System which approves the capacity of three sorts of protection plans, which incorporates open Mutual Health Insurance conspires in the majority of the nation’s 110 locale, private common protection plans and private business protection plans. However, the Public Mutual Health Insurance plans are fiscally maintained by the National Health Insurance Scheme. Ghana took a decision in the past two decades to offer for a single healthcare system which caters for everyone in the country, in the pursuit to achieve what is called the Universal Health Coverage, it entails that medical services are provided for free and no one will be denied access to healthcare services on the grounds that they are unable to pay hospital expenses. This was indicated in a research article of A.

Williams(2016) that In 2003, the regime of Ghana recognised the NHIS through an act of parliament Act 650, revised to Act 852 in 2012 to offer fiscal risk protection aligned with the expenditure of basic healthcare for all residents in Ghana. The author alludes further that the law, required all Ghanaians to register for the National Health Insurance Scheme, with the exclusion of the Ghana Armed Forces and the Ghana Police Service. The National Health Insurance Scheme provides for the stipulation for the immunity of certain groups of people. These categories consist of the poor, children who are under the ages of 18 years, older people who are over 70 years of age, pregnant women and persons with mental disorders. 5.3. The challenges of Ghana’s Healthcare System (National Health Insurance Scheme) The following challenges were set out by R.

Kaba-Alhassan, E. Nketiah-Amponsah, D. Kojo –Arhinful(2016). They are as follows; The NHIS facade effective maintainability dangers; the authors claims that the capability of the National Health Insurance Scheme to persist its functions in Ghana is threatened monetarily and operationally by dynamics such as: cost acceleration, probable political intrusion, insufficient methodological capacity, spatial allotment of health facilities and health workers, insufficient monitoring systems, broad benefits package, large immunity groups, insufficient consumer education, and restricted community engagement. furthermore, poor quality care in the National Health Insurance Scheme endorsed health facilities potentially diminish consumers’ confidence in this initiative and as a result reduce reenrolment tolls. A.Addae-Korankye (2013) is of the opinion claims that the execution of the NHIS has been confronted with some challenges.

With regards to conditions of coverage, whereas National Health Insurance Scheme is strictly mandated and must have universal coverage, the author claims that practice has revealed that fiscal and monetary hurdles still subsists with membership distorted in opposition to the poor and marginalised. The author claims further that the procedures for identification of the poor unto the National Health Insurance Scheme have demonstrated incompetence and ineffectiveness; means test for discovering the poor has been depicted as inflexible as it has modest indication of the local contexts. The third challenge is that while health insurance is a communal security plan and a fund into which the general public make contributions, customer’s voice on its operations is extremely restricted. Constant as rations have been made for the formation of such organisation as complaints system and community insurance committees, various schemes by no means recognised and regularly used them. In relation to this is also the issue of limited community participation, awareness and information on National Health Insurance Scheme operations.

5.4. The Healthcare System of South Africa P Delobelle (2013) provides that the SA’s health system can be depicted as a twofold system; that consists of partially privatised and partially socialised healthcare. The relatively hefty public health sector mainly caters for the black community, with services ranging from free primary healthcare services to secondary and tertiary care offered at state owned hospitals, while the private sector offers the best facilities for the insured minority, or for those who can afford care on an out-of-pocket basis. Although the public sector is accountable for the welfare of the majority of the populace, most resources are concentrated in the private health sector, which consumes 55-60% of the total healthcare budget, but caters for less than 15% of the populace, the public health sector largely depends on general tax revenues, which consume around 11% of the government’s financial plan, allocated and spent by the nine provinces according to their needs and priorities. Quality of care, however, depends to a large extent on the budget allocation by individual provinces and districts.

SA took on a radical innovative direction for its national health system with the publication of the government’s Green Paper on National Health Insurance. It projected four key intercession: the first one being an absolute renovation of healthcare service provision and delivery, the second one being an entire revamp of the health care system, the third one being a drastic modification of administration and management and the last one being the provision of a complete package of care underpinned by a re-engineered system of primary healthcare. 5.5.The Challenges of South African Healthcare System (National Health Insurance Scheme). R V Passchier( 2017) sets out the challenges of executing the NHIS as follows; firstly, the author claims that the finance of the National Health Insurance, will set up a compulsory prepayment of healthcare costs, which is different from erstwhile methods of payment like voluntary prepayment, out-of-pocket payments and tax. Secondly, the author claims that since the primary healthcare in SA is free, and hospital-care costs are relinquished for defenceless populations.

How can the state substantiate to the citizens that they should pay for a service that they used to get free? Thirdly, the author pointed out those systemic challenges contained by the present system might negatively impinge on the capacity of the National Health Insurance to convert supplementary finances into improved quality healthcare, and the regime risks introducing more in efficiencies into an already-struggling system. Fourthly, the author is of the opinion that a basic condemnation of the National Health Insurance is that its execution will be forced by the poor administrative and managerial capability of the state; the system is endangered by poor co-ordination amongst national, provincial and district levels. Lastly, the author indicates that National Health Insurance declares to prioritise services to those who are most in need. Conversely, capacity differs amongst provinces, assembling their capability to execute service uneven.

This masquerades the risk of amplifying the equity gap, except targeting and incentives can maintain the poorest-served provinces. It is uncertain how the National Health Insurance will reallocate the human resources and infrastructure that have been firmly set in centuries of unequal distribution along public-private, rural-urban, primary-tertiary and poor-rich lines. 5.6. The Benefits of the NHIS to the Indigent people of South Africa. The proposed bill of the NHIS will enhance the nature of medicinal services administrations and advance the needs of both the indigent and the wealthy. According to R.

Rensburg the arrival of the NHIS is the administration’s answer for the issues of disparities of access to medicinal services realized by the present human services arrangement of SA. The author outlined the benefits of the NHIS to the indigent as follows; the NHIS seeks to approach the quality and the sort of administrations the people gets on a populace based methodology, instead of conveying medicinal services framework in view of the financial status of the masses.. The author explained further that, this methodology (populace based methodology) implies that financial plans would be assigned in view of what number of individuals lives in a region and what their ailment profiles and social insurance needs were. Another point that the author raised is that the NHIS aims to look at healthcare services through three vantage points namely; what services are needed, who needs them and who will convey them. The last benefit provided for by the author is that the NHIS will bring more prominent value.

The author contends that the NHIS will . will present a more fair spread of administrations, this will therefore advance the needs of the poor as in since the general population in rustic territories depend entirely on the under-resourced open division, the NHIS will guarantee that everyone will approach medicinal services where they require it without managing tremendous costs. 5.7.Conclusion. In this chapter it was shown that the health system of South Africa and Ghana is hybrid in nature. Ghana’s healthcare services are delivered through four components (public, private-for-profit, private-not-for-profit and traditional systems), whereas in South Africa they are delivered through two components (public healthcare and private healthcare).

Despite the challenges of sustainability and funding of the NHIS, Ghana was able to implement this system; every citizen is required by law to join the scheme. Thus the researcher is of the opinion that South Africa needs to come up with effective strategies to implement NHIS with the goal of attaining the Universal Health Coverage. ? Chapter 6: Conclusion and Recommendations. 6.1. Conclusion. As indicated throughout the study, the right of access to healthcare services is an essential human right and it is assured by the SA Constitution.

The dawn of the vote based system rectified the unjust laws of the politically-sanctioned racial segregation administration and consequently this put to an end the issues of discrimination. Segregation is currently unessential; the real issue that appears to obstruct an equivalent South Africa is the issue of natives being barred in light of the ground of economic wellbeing. In chapter one the researcher provided the reader with the background of the South African Health system, the researcher’s findings in chapter one reflects the history of South African healthcare system, how the politically-sanctioned racial segregation administration oppressed black people under healthcare administration. Black people were excluded on the basis of segregation and their economic wellbeing, the researcher then identified the problem statement and research question, together with the methodology adopted to conduct the study.

The researcher in chapter one indicated in the problem statement that the two-tiered structure of the South African healthcare system leads to the gaps of inequalities, since it was created with the intention to serve two classes in the society, namely; the elite class and the indigent class. This healthcare structure also has an impact on the kind of services offered to the citizens; a lot of research has shown that public services are of poor services and that private services are of quality ones. In chapter two the researcher provided the constitutional and legislative provisions of the right to healthcare. The researcher did that to investigate and explore the nature, content and meaning of the right, to be able to shed some light to the reader. It was indicated in this chapter that the Constitution, is the superior law of the country and no one is above the law.

Any law that is not in line with the constitution is declared as invalid, the National Health Act was enacted to give guidance to the regime on how to go about fulfilling the right of access to healthcare. Several problems were identified in this chapter and most of these issues pertain to the constitutional provisions, in particular s 27. A lot of authors are of the view that the focus on the provision of healthcare in South Africa is formulated narrowly as compared to the international human right to the highest attainable standard of health. The authors further argue that, the constitutional right efficiently eliminates the administration’s wide public health, liabilities given the proportionally restricted endowment that healthcare makes to recuperating population health. The constitutional court as the judiciary has tested the provisions of the right of access to healthcare. The researcher came to the realisation that the decisions of the constitutional court are imperative simply because they set out a precedent for everyone to know what the law says about certain issues pertaining to health.

A number of cases were included in chapter two to provide the reader with an insight of the underlying meaning of s 27. The case of Grootboom, Treatment Action Campaign and Soobramoney, represented the Court’s creating investigation of the socio-economic rights accommodated in the constitution and furthermore, its inclinations concerning the court’s duty in requirement. The Court’s first socio – economic rights goals in Soobramoney was not, on the other hand, a positive begin, and appeared to infer a confined justiciability on area 27, a refusal to force positive execution, and a ridiculous respect to state certifications of budgetary limitations. In chapter three the researcher purported to explain what privatisation entails, the effects thereof on the right of access to healthcare services. It was indicated in this chapter that the privatisation of healthcare services raises the issues of inequalities; the most affected are the people in rural areas.

They travel long distances to hospitals and clinics, they get attended to by doctors and nurses after a long time. It was revealed in this chapter that privatisation of healthcare services has a positive effect on the economy; however the underlying issue here is that what can the state do to ensure that people’s rights are not affected by the phenomenon of privatisation of healthcare services. In chapter four, the researcher discussed the obligations vested on the state to ensure that the right of access to healthcare is realised. The state is compelled to protect, fulfil, respect and promote the rights codified in the BoR including the right of access to healthcare services. These duties are positive and negative, in carrying out its duties; the state is guided by legislature.

This is so because of the concept of separation of powers, this concept seeks to prevent the abuse of powers by government officials. Therefore the judiciary is there to check if whether these government officials execute their mandate legally. In chapter five the researcher compared the health system of Ghana and South Africa, The policy and legislative measures brought about by the regime of South Africa over the years are important strides taken in the direction of the progressive realisation of the right to have access to healthcare services and significantly, the execution of the NHI was received as a pilot project by various academics simply because of the fact that it sets out a framework of legislation which binds all participants concerned in the provision of healthcare services. On the other hand Ghana implemented the NHIS; every citizen in Ghana is required by the law to register to be a member of the scheme. 6.2.

Recommendations. With regards to privatisation of healthcare services, the researcher recommends what Z Vavi suggested in a newspaper article that the present strategy to privatize medicinal services benefit conveyance should be changed. He claims that the state must acknowledge that the general population division must be changed, however in the point of view SA, the reconstruction must seek to widen the state and not the market, in offering open and reasonable human services administrations, and that any reorganization of open segment fundamental administration conveyance should be leaded by sensible money saving advantage examination of its impact on the underprivileged. He contended further that parliament as the chosen delegates of the citizens needs to have ultimate supervision over the reformation procedure. A Chapman(2014) prescribes that the states must be accountable for warranting that private suppliers operate concordance in the midst of human rights standards.

With regards to the obligations of the state the researcher is of the view that since in a number of academic narrative, the SA constitution is potrayed as a transformable constitution for the for the way it includes some rudiments that are indispensable for change, for example the entrenchment of justiciable socio-economic rights, the researcher thus came to the realisation that it will be most excellent to assume D Bilchiz approach to socio-economic rights with explicit reference to the obligations vested on the state. The approach is premised on assuming the greatest of the minimum core and reasonableness approaches to socio-economic rights interpretation, with the intention of making sure that socio-economic rights fixed in the constitution realise their accurate potential in changing the lives of the people of SA. Moreover, the approach is ethical, goal-oriented and also as cumulative, and is intended at developing the substantive content of the socio-economic rights codified in the Constitution. The minimum core concept in the sphere of socio-economic rights intends to bestow least legal content for such rights, this concept is crucial in that it thwart the regime from labouring under the excuse of lack of not having enough resources when they fail to discharge a particular socio-economic right. Thus it is required for the administration to tackle rapidly the least amount altitude of the claims beneath under a certain socioeconomic right while acknowledging that other rudiments of the right will be realised over time.

With regards to the implementation of the South African NHIS, Young People’s Recommendations on South Africa’s NHI White Paper recommends the following solution for reliance on the private sector. They propose that South Africa needs to desist from relying too much on the private sector, because they claim that the even though the private sector is capable of managing the funds, the private sector is only interested in making profit than serving the public needs. Bibliography Journal Articles A.Addae-Korankye ‘Challenges of Financing Health Care in Ghana: The Case of National Health Insurance Scheme (2013) 3 International Journal of Asian Social Science 511,518. J Awooner-Williams et al. ‘Does the Operations of the National Health Insurance Scheme (NHIS) in Ghana Align with the Goals of Primary Health Care? Perspectives of Key Stakeholders in Northern Ghana’ (2016), BMC International Health and Human Rights 1,3. D Bilchiz ‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance’ (2002)118 South African Law Journal 484,501.

M Brauns ‘Public Healthcare in A Post-Apartheid South Africa: A Critical Analysis in Governance Practices'(2016) University Of KwaZulu-Natal 3 A Chapman ‘The Impact of Reliance on Private Sector Health Services on the Right to Health (2012) 16 Health and Human Rights Journal 123,124. A. Dhai ‘A Health System That Violates Patients’ Right To Access Health Care’ (2012) 5(1) South African Journal Of Bioethics And Law 2, 3. P Delobelle ‘The Health System in South Africa: Historical Perspectives and Current Challenges'(2013) South Africa in Focus: Economic, Political and Social Issues 160,161. B Harrisa, et al ‘Inequities in Access to Health care in South Africa'(2011) 32 Journal of Public Health Policy 1,4.

R. Kaba-Alhassan ‘A Review of the National Health Insurance Scheme in Ghana: What are the Sustainability Threats and Prospects? (2016) PLoS ONE 11,16. L London & L Baldwin-Ragaven ‘Human Rights Obligation in Health Care’ (2006) 24 Human Rights 20,22. K. Moyo ‘ The Jurisprudence of the South African Constitutional Court on Socio-economic Rights’ (2016) Foundation for Human Rights 21,40. C Ngwena “The Recognition of Access to Healthcare as a Human Right in South Africa: Is It Enough?(2000) 5 Health and Human Rights p27,31.

K. Pillay .’Tracking South Africa’s Progress on Health Care Rights: Are We Any Closer Achieving the Goal?'(2012)Law, Democracy and Development 55, 55. R V Passchier ‘Exploring the Barriers to Implementing National Health Insurance in South Africa: The People’s Perspective'(2017) 107 South African Medical Journal in Practice 836,837. A Salisu ; V Prinz ‘Health Care in Ghana’ (2009) ACCORD Austrian Red Cross p4,11.

H.C.J Van Rensburg ; A Fourie ‘Privatisation of South African Health Care: In Whose Interest?'(1988), 11, Curationis,1,1. Books I Currie ; J de Wal The Bill of Rights Handbook 6 ed (2013)18. Sibongile Khoza, Socio-Economic Rights In South Africa (2007) 31, 32. Constitution The Constitution of the Republic of South Africa Act 108 of 1996.

Documents and Resolutions by International Organisation General Comment No.14 (2000) The Right to the Highest Attainable Standard of Health, (Article 12 of the international Covenant of Economic, Social and Cultural Rights). UN Committee on Economic, Social and Cultural Rights 2000. The World Health Report (2000). Health Systems: Improving Performance. Geneva, World Health Organization, 2000. Case Law Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC).

Government of the Republic of South Africa Grootboom,2000 ZACC 19, SA 46, 2000 (11) BCLR 1169. Soobramoney v Minister of Health 1997 ZACC 17; 1998 (1) (SA) 765 (CC); 1997 (12) BCLR 1696. Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC). Internet Sources…/00107047.pdf.…/Shan_the-South-African_article-3.pd….…honors_theses.–discovery-health/.

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