adv paul allen wayburne member of the johannesburg bar phd ...crm. آ  adv paul allen wayburne

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  • ‘NHI and the Constitution - Balancing the rights of 8.5 million medical scheme members with the rest of the population’

    Adv Paul Allen Wayburne • Member of the Johannesburg Bar • PhD Candidate (Wits - Expected Dec


  • Outline of Presentation

    1. Libertarian and egalitarian approaches to health reform. 2. National Health Insurance (‘NHI’) 3. The Chaoulli case from the Supreme Court of Canada 4. The South African Constitution - its importance to the NHI

    debate 5. Whether NHI is consistent with the Constitution?

    • Enhancing access to health care for the majority of the population.

    • Protecting the interests of medical scheme members. • The importance of having a balanced approach.

  • Elements of National Health Insurance based on Green Paper 1. Universal coverage – Citizens and legal residents will be

    entitled to benefit from NHI regardless of contribution. 2. Single NHI Fund that will procure health care services on

    behalf of entire population. 3. No person will be permitted to opt out of liability to

    contribute to NHI. 4. Medical schemes will continue to exist in some form. 5. Primary health care approach. 6. Accredited hospitals will be contracted to provide services to

    patients. 7. Comprehensive basic package of health care benefits (not

    clear what this means).

  • Libertarian Approach - 1

    • Negative liberty/freedom - Emphasis on individual liberty from the State

    • Isaiah Berlin – ‘I am normally said to be free to the degree to which no man or body interferes with my activity. Political liberty in this sense is simply the area within which a man can act unobstructed by others. If I am prevented by others from doing what I could otherwise do, I am to that degree unfree.’ (Four Essays on Liberty, Oxford University Press, 122).

  • Libertarian approach – continued.

    John Stuart Mill: ‘There is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by force of opinion and even by that of legislation’. (John Stuart Mill On Liberty) ‘In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. (John Stuart Mill, On Liberty)

  • Libertarian Approach - continued

    • Application to health care: • Individuals must be as free as possible to access health care. • Immaterial that some people are less able to access health care

    than wealthier people. Poverty is not a defining factor of the absence of freedom.

    • State involvement in financing and provision of health care must be limited. It must not curb freedoms of individuals.

    • It is immaterial that there are inequalities relating to the provision of health care services.

  • Egalitarian Approach - 1

    • ‘Equal health care for equal need’ • Derived from egalitarian principle – ‘government must act to make

    the lives of those it governs better lives, and it must show equal concern for the life of each. ’ (Dworkin Sovereign Virtue)

    • Redistribution. • Freedom should not come at the expense of equality. • State plays central role in facilitating access to health care services. • Suspicion of private sector entities because of profit motives. • State is the only entity capable of enhancing access to health care for

    all South Africans.

  • Chaoulli v Quebec (Supreme Court of Canada) • Challenged the constitutionality of the

    legislative ban on parallel private health insurance as being inconsistent with Canadian and Quebec Charters

    • Basis of challenge was that persons with sufficient money were prevented from accessing health care in the private sector.

    • Only unconstitutional in cases where waiting lists had adverse affect on health of patient.

  • Majority Judgment

    • Legislation inconsistent with section 1 of the Quebec Charter, which states:

    • Every human being has a right to life, and to personal security,

    inviolability and freedom.

    • ‘a health care service that does not attain an acceptable level of quality of care cannot be regarded as a genuine health care service. Low-quality services can threaten the lives of users.’ (para 50).

    • Held that there were other ways that the integrity of the public system can be protected.

  • Concurring Majority Judgment

    • Agreed with majority that legislation inconsistent with section 1 of Quebec Charter.

    • Also inconsistent with section 7 of the Canadian Charter: ‘Everyone

    has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’.

    • ‘[a]ccess to a waiting list is not access to health care.’ (para 123) • Only those cases where adverse affects are serious and clinically


  • Minority Judgment

    • Legislative prohibition was rationally related to legitimate government purpose of protecting the public system.

    • Emphasis on equality – Cannot have two health systems • The absence of private health care did not violate the rights of the

    residents of Quebec on an equal basis, because poor persons and others who cannot obtain private health insurance are not adversely affected by the legislative prohibition.

    • Equal health care for equal need

  • Criticisms of majority

    • Jeff King – ‘In this case, the Charter privileged to security of the person over the competing interest of providing effective and efficient public health care to those who cannot afford private health insurance.’

    • Martha Jackman – ‘The result of the majority’s reasoning and choice of

    remedy is that those with the ability to pay, and who otherwise qualify can buy health insurance and care outside the public system. Those who are left, however–those who lack the financial means, who are already ill or who are disabled, and who can’t therefore obtain private health insurance are effectively denied a remedy to the rights violation… They, in short, are left to languish and die on public waiting lists. At best, the majority’s remedy is an under-inclusive one, enabling only those relatively advantaged individuals who qualify for and are able to afford private insurance to jump the public queue. ’

  • Criticisms of majority

    • Andrew Hutchinson Access to Health Care, Access to Justice: • ‘People are treated as rational and private individuals who

    share little more than an abstract humanity. By treating everyone as the same and equally placed to exercise rights, this political approach ignores the very different material and social conditions in which people live. It depicts a just society as one in which achievement of personal liberty and social justice can be effected without concern for serious economic equality… Indeed Chaoulli confirms that the extent of a person’s wealth and resources remains the real measure of citizenship.’

  • Criticisms of the minority

    • Patrick Monahan: State may not restrict liberty to access parallel private health insurance and not offer reasonable health care in the public sector.

    • Equality of vengeance – ‘it cannot be open to government, in any event, to

    prohibit one person from utilizing his or her own resources to purchase services that are necessary to his or her health on the grounds that someone else cannot afford to purchase the same service and then refuse to provide the needed service to both persons. That course would truly represent equality with a vengeance, a desire to enforce an equal outcome even if the perverse result is to deny everyone concerned timely access to needed medical care. In essence, it would treat individuals as mere objects or means to the achievement of a political ideology, without regard to the consequences for actual human beings.

    • No point in having equal access to inadequate care.

  • Criticisms of the minority

    • No differentiation between different classes of care

    • Minority does not indicate if the prohibitions would ever be inconsistent with the Charter

    • Must allow some persons to escape consequences of a bad public health system

  • South African Constitution

    Section 7(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. Section 7(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

  • South African Constitution

    Value of Equality

    • Substantive equality

    • Redistributive equality

    • Differential treatment is not inconsistent with value of equality.

    • Social Solidarity – fair use of resources

  • South African Constitution

    Value of Freedom • Positive freedom • Rejection of negative freedom – concerns



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