Can Rights Cure?
by Marius Pieterse
ISBN: 978-1-920538-27-9
Pages: 194
Print version: Available
Electronic version: Free PDF available

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About the publication

Post-apartheid South Africa has yielded enlightened judicial decisions in contrast to the limited interpretation of human rights in Ireland. The value of human dignity with its central position in international law underpins both countries’ Constitutions, but has left a more striking mark in South Africa. There it has impacted significantly on punishment for crimes, family life, children’s rights, defamation, sexual violence investigations, substantive equality and socio-economic rights. Practical guidance can be gleaned from South Africa to revitalise Irish jurisprudence. While its focus is on South Africa and Ireland, this book draws on the experience of many countries and regions.

About the editor:

Marius Pieterse is Professor of Law, University of the Witwatersrand, Johannesburg.

Table of Contents

  1. Rights, health, courts and transformation
    1.1 Introduction
    1.2 The state of the South African health system
    1.3 Content and dimensions of the right to health
    1.3.1 International law
    1.3.2 South African constitutional law
         Health-related freedoms
         The right to equality
         Rights to non-medicinal determinants of health
         Rights to health care services
    1.4 Justiciability of the right to health
    1.5 Conclusion: Aims and objectives of this book
  2. Rights through legislation/legislation through rights: Health law and policy in the Constitutional era
    2.1 Introduction
    2.2 Health care legislation in post-democracy South Africa and its impact on access to care
    2.2.1 The Choice on Termination of Pregnancy Act 92 of 1996
    2.2.2 The National Health Act 61 of 2003
    2.2.3 The Medical Schemes Act 131 of 1998
    2.2.4 Overview: Transformation through health legislation and policy?
    2.3 Assessing legislative and executive compliance with constitutional health rights: The Constitutional Court's approach
    2.4 Conclusion
  3. Health rights litigation, individual entitlements and bureaucratic impact
    3.1 Introduction
    3.2 The health rights judgments and their aftermaths
    3.2.1 Van Biljon v Minister of Correctional Services
    3.2.2 Soobramoney v Minister of Health (KwaZulu-Natal)
    3.2.3 Minister of Health v Treatment Action Campaign
    3.2.4 Minister of Health v New Clicks South Africa
    3.2.5 N v Government of the Republic of South Africa
    3.2.6 Law Society of South Africa v Minister of Transport
    3.2.7 Lee v Minister of Correctional Services
    3.3 The impact of the health rights judgments on individual and collective struggles for access to health care services
    3.4 The impact of rights-vindication on health system reform
    3.5 Conclusion
  4. Rights and resources: The limits of justiciability?
    4.1 Introduction
    4.2 Rights discourse, resource allocation and the unmasking of tragic choices
    4.3 Rights as directives for resource allocation and rationing
    4.3.1 Possible normative directives embodied by health-related rights in the South African Constitution
    4.3.2 Institutional obstacles to providing normative resource-related directives through the courts
    4.4 Assessing the impact of South African human rights jurisprudence on health budgeting and financing
    4.5 Rights and contemporary health financing policy debates
    4.6 Conclusion
  5. Rights, horizontality and regulation: facing the public/private divide
    5.1 Introduction
    5.2 Rights as impetus for private health sector regulation
    5.3 Rights as parameters for private health sector regulation
    5.3.1 Health care practitioners' freedom of occupational choice
    5.3.2 Patients’ right of access to care
    5.4 Beyond regulation: Towards enforcing human rights obligations in the private health sector
    5.5 Conclusion
  6. Rights as restraints?: Balancing individual liberties and public health
    6.1 Introduction
    6.2 Assessing the human rights impact of public health policies
    6.3 Public health and the South African Bill of Rights
    6.4 Rights, limitations and the prevention of multi-drug resistant (MDR) and extreme drug resistant (XDR) tuberculosis
    6.4.1 Adopting a human-rights framework to current laws, policies and practices aimed at MDR and XDR-TB prevention
    6.4.2 How not to apply a human-rights framework: Minister of Health, Western Cape v Goliath 1
    6.5 Conclusion


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