Right to health needs to be enforced
THE right to health is underlined by many socio-economic factors, which include food and nutrition, housing, access to safe and potable water, adequate sanitation, safe and healthy working conditions and a healthy environment.
The underlying principles of the right to health as enumerated in the World Health Organisation (WHO) constitution include healthy child development, equitable dissemination of medical knowledge and its benefits, and government-provided social benefits.
These are the principles that governments have to aim to achieve in order to realise the right to health. It is important to note that an effective method of achieving this goal is to strengthen legislation pertaining to the right to health, beginning with enforceability at a constitutional level.
A country worthy of laudation for its promotion of health rights is the Republic of South Africa. It has enacted various laws that range from protection of patients’ rights to forming a blueprint for the transformation of health systems.
These laws include the Mental Health Act 2003, Medical Schemes Act 2003 and the White Paper on Transformation of Health Systems in South Africa
Legislation in our motherland, Lesotho seems to be lagging behind in fulfilling the underlying principles of the right to health. The most important piece of legislation, the Public Health Act of 1970 is as good as outdated, as it does not have any amendments to meet the changes in society’s health needs.
There is no clear allocation of responsibilities at community level, ever since the advent of decentralisation of national government to local government. The most noteworthy and perhaps devastating aspect of our health law is that as a socio-economic right, the right to health is not enforceable at law.
Such a right can only be implied in certain laws which govern labour matters or relate to the environment. These include the Labour Code Order of 1992, Public Service Regulations and the Environment Act of 2008.
Most of the legislation does not afford adequate relief to persons whose health rights have been infringed on. This is of course with the exception of the Environment Act No. 10 of 2008 which gives such aggrieved persons the right to claim relief as provided under section 4.
This has brought Lesotho a step further in meeting the right to a healthy environment, which is a component of the right to health.
Other important health legislation has not yet been enacted, in spite of government’s mission to fully realize health rights since the inception of the Constitution in 1993. There is no particular legislation on mental health patients and their entitlements in Lesotho.
This is even more important as presently the streets in Lesotho are teeming with mentally handicapped persons who linger about while government does nothing to put them to safety. Both their lives and those of the community are at risk due to the passiveness of government on the issue.
Developing countries usually hide behind the term “progressive realisation” as an excuse not to fulfil their duty to fulfil socio economic rights.
The term should not be understood to mean that economic, social and cultural (ESC) rights can only be realised when a country has reached a certain level of economic development.
South Africa itself has not fully developed as there are various socio economic factors that still need improvement. However, by giving the courts power to adjudicate over ESC rights, the South African government’s work was made a lot simpler as courts are able to assist government by providing the targeted steps it should take in order fully realize ESC rights.
The notion of available resources should also not be used as an excuse not to realize the right to health, as the international community stands ready to assist poor countries especially in relation to promoting human rights.
By transforming the non-justiciable Principles of State Policy into justiciable economic, social and cultural rights, the courts of Lesotho would be in a better position to give a blueprint for the government to follow in realizing not only the right to health, but also many other socio economic rights as outlined in Chapter three of the Lesotho Constitution. A justiciable right is that which may be enforceable in the courts of law.
Lesotho should focus on creating a comprehensive programme and a national framework to facilitate the realization of the right to health such as the White Paper on the Transformation of Health Systems in South Africa.
This document informs the national health framework by giving goals and objectives to be achieved by government in the health sector. It also helps in defining the roles of national and provincial governments in respect of providing health services. A similar document would be useful in making health services accessible to remote communities in Lesotho through the local government.
The Public Health Order of 1970 should also be amended to include a broad range of issues ranging from participation of patients in decision making.
This would include provision for the rights of patients to consent to certain medical procedures performed onto them, obligations to keep records, principles of confidentiality and the laying of complaints. There is also a need to draft other legislation with regard to health.
This includes a mental healthcare law which would outline the duty of government to take care of mentally handicapped persons and remove them from the streets into mental rehabilitation centres.
Meanwhile, as the Legislature transforms health laws, it is recommended that the judiciary takes a firmer and more activist stance in promoting health rights, as has already been introduced in judgments handed down based on the indivisibility and interdependence of socio economic rights and civil and political rights in Lesotho.