Indirect Horizontal Application of the Right to Have Access to Health Care Services

Abstract

Apart from their direct application against the state, the justiciability of socioeconomic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution of the Republic of South Africa, 1996, which determines that rights may sometimes bind private parties and requires courts to develop the common law in accordance with the spirit, purport and objects of the rights in the Bill of Rights. Common-law development is a viable remedial paradigmfor the horizontal enforcement of socio-economic rights. This is particularly because the value-based development of common law in the course of private-law litigation is often regarded as an uncontroversial aspect of the judicial function, even in legal cultures to which the notion of rights-based judicial review is novel or alien. To illustrate the necessity of infusing the private law realm with public law values associated with the protection of socio-economic rights, the article considers the effect of the constitutional right of access to health care services, on the body of South African private law pertaining to the regulation of the doctor-patient relationship. After making a case for the seepage of public law norms into the private-law regulation of this relationship, the article points to certain features of such regulation that appear in need of reconceptualisation in light of relevant constitutional guarantees. It then suggests certain modifications to the existing legal position and critically discusses case law in which similar developments have been contemplated.