Right to health needs to be en­forced

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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.

Hla­soa Mo­lapo.

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