Substantive equality and adverse effect discrimination in the context of National Health Insurance in South Africa

Abstract

The value of substantive equality, and the rights to equality and not to be subjected to unfair discrimination in section 9 of the Constitution have rarely been considered in relation to debates on health care reform. This is so because there is a specific right to have access to health care services in section 27 of the Constitution. This article examines the concept of constitutional equality in the context of the South African government’s National Health Insurance policy (NHI). If implemented, NHI promises to create a true national health system characterised by solidarity and universality. Ultimately, substantive equality, as animated by sections 9 and 27 of the Constitution, recognises the need for redistribution in the health care industry in order to alleviate the effects of past discrimination and give meaning to the idea of social solidarity. Importantly, regard must be given to the different ways in which access is inhibited for different people. Interpreted in this context, the equality clause and the health right allow for redistribution despite adverse effects that might be caused to less vulnerable people. Yet, when redistributive measures are devised and implemented, care must be taken to achieve their overall purpose of enhancing access to health care services for the disadvantaged whilst also adequately respecting the dignity of those adversely affected by such measures. Balancing the need to preserve the existing access to health care services with the obligation to enhance access for disadvantaged persons is essential for ensuring the constitutionality of NHI. Coupled with this is the need to avoid unfair discrimination against private sector beneficiaries, non-residents, the aged and the sick, amongst other persons.