Abstract:
The purpose of this thesis is to prove the existence of the right to adequate healthcare through a critical analysis of the law of obligations, constitutional law and international law framed in the wider focal point of South African medical law. The Constitution only makes provision for the right to access to health care. Conclusively this thesis will have to establish a link between a minimum standard in health care and the Constitution. It is submitted that the most efficacious method of establishing this link is with the duty of care, which is intrinsically linked to the doctor-patient relationship. If a critical analysis of the doctor-patient relationship can establish a clear link between the duty of care and state liability then such a link can successfully be applied to the Constitution. If this link is transposed onto the Constitution, a critical evaluation of the rights in the Bill of Rights will then reveal the most applicable right that can house the right to an adequate standard of health care. Such an analysis is only part of the solution however. In order to make this right effective, the international body of medical laws must be critically analysed and juxtaposed against this adequate standard. This carries the dual purpose of adding normative content as well as determining the current state of South Africa’s obligations under international human rights law, and to what extent those obligations have been discharged. Finally, and most significantly, the right to adequate healthcare, as it was forged in the international legal analysis, will be transposed onto the current South African jurisprudence of socio-economic rights. This practical application will then be reflected onto the new National Health Care Insurance to show conclusively that the current governmental approach of effecting health care is wholly inoperable and will ultimately result in significant harm and extensive human rights violations. This is based on the government only considering access to health care sufficient to discharge its duties and being totally incapable of effectively managing its resources. The core outcome for this thesis is to prove the existence of the right to adequate healthcare. Secondary outcomes are tracing the history of medicine to illustrate the creation and evolution of the doctor-patient relationship, a critical analysis of the application of medical ethics to South African law of obligations, a critical analysis of the Constitution and its fundamentals, an exhaustive evaluation of South Africa’s duties and accomplishments under its international obligations and effectively applying the right to adequate healthcare which is diametrically opposed to the current course South Africa is taking to provide health care.
