There is currently much debate about the implementation of a National Health Insurance Scheme (NHIS) in South Africa. Media reports indicate that a tension exists between supporters and detractors of the NHIS. One of the primary tenets being used to support the introduction of a NHIS is the constitutional obligation of Government to provide access to healthcare services.
This debate arises, as of necessity some would say, as a result of the direction contained in section 27(1)(a) of the Constitution, which obliges Government to provide access to healthcare services. In a similar vein, and maybe as a forbear to a NHIS, the State has already, some would argue, met its obligation in section 27(3) of the Constitution: to provide all persons with emergency medical services.
The legislative support for this obligation, imposed upon the State by the Constitution, is set out in section 5 of the National Health Act No. 61 of 2003, which provides that no one may be refused emergency medical treatment.
Within the context of the current NHIS debate, the emphasis has clearly fallen on the manner in which a NHIS is to be constructed in order to provide as many people as possible with access to healthcare services. The access debate revolves primarily around the issue of what measures Government should implement in order to ensure that healthcare is accessible to all.
The concept of access to healthcare arguably requires that legislative measures be taken by Government to provide for procedures, administrative and bureaucratic infrastructure, and policies that are to be relied upon to provide people with access to healthcare services. Such policies, by way of example, may require:
- an increase in the number of clinics that are available to people living in rural areas;
- access to a primary healthcare provider;
- the provision of cheaper medicines; and
- the identification of diseases that affect more people and thus require more attention and appropriate responses from Government - especially diseases such as cholera, malaria, tuberculosis and HIV and AIDS.
The debate about access to healthcare services is certainly a debate that must be held by virtue of the constitutional directives campaigned by the Bill of Rights. This debate also finds a voice in our common law by virtue of judicial pronouncements by the Constitutional Court. These pronouncements are encapsulated in matters ranging from the provision of renal dialysis services in the Soobramoney v Minister of Health, KwaZulu- Natal 1997 (12) BCLR 1696 (CC) decision and the decisions concerning the provision of HIV treatment following legal action taken against the Department of Health by the Treatment Action Campaign in 2002.
But what of quality healthcare?
Quality of care as a separate component of a NHIS, however, stands as a secondary consideration when one is talking about a NHIS or even debating such a scheme.
Quality of care is more ethereal in nature. It is difficult to pin down or encapsulate eloquently in a sentence or two and so is largely ignored by legislators. There is great difficulty in defining what it is that defines quality healthcare - most commentators on the topic defer to the idea that quality of care is dependant on the emotional connection between an individual and his or her health service provider.
Quality is thus defined by the individual based on the outcome of the healthcare service that he or she receives: a good outcome normally indicates good quality care and a bad outcome indicates bad quality care.
This debate, on such terms, makes defining a generally accepted normative quality of care difficult if not impossible and certainly renders it controversial within the current debate of the access to healthcare – at least in the NHIS paradigm in which we currently find ourselves.
But is quality healthcare a priority?
In their book Redefining Healthcare: Creating Value-Based Competition on Results M E Porter and E O Teisberg (2006 at page 85) state that, "[t]he issues of safety and quality are valid and essential. It simply is not acceptable to have preventable medical errors as a leading cause of death. Information on quality and outcome is essential to any effort toward value improvement [in healthcare]... Moreover, and this is less understood, poor quality almost always raises costs through inefficiency, prolonging the need for care, and requiring remedial treatments or surgery".
They conclude on the topic (at page 88) that, "[t]he only truly effective way to address value in healthcare is to reward ends, or results, rather than means, such as processed steps. The relevant results can be measured only at the level of medical conditions and over the cycle of care, where healthcare value is determined for patients, not for a hospital or other provider entity overall. Guidelines are important to go to doctors and spread knowledge about best practices, but rewards for excellence must be tied to results, not compliance. Providers should have to compete for patients based on value and not be rewarded for delivering just acceptable care".
The debate concerning quality is certainly one that appears to be centred on whether or not care that is provided produces the results that are desirable but the question is desirable to patients or administrators or healthcare providers. Therefore quality appears to have a place in the debate.
Quality is especially important when one considers what social ends healthcare is designed to achieve within a democracy or, more particularly, what co-ordinated healthcare such as a NHIS is designed to achieve in the context of a South African democracy – one that is premised upon the Constitution and the Bill of Rights.
In their book Social Justice: The Moral Foundations of Public Health and Health Policy (2006 at pages 81 to 84), M Powers and R Faden state usefully that "... insofar as a standard view of the moral justification or moral point of public health as emerged, it goes something like the following. Public health is the social institution charged with promoting human welfare by bringing about a certain kind of human good, the good of health. The moral foundation for public health thus rests on general obligations in beneficence to promote good or welfare. Depending on the interpretation, public health is further understood as having utilitarian commitments to bring about as much health as possible. Concerns about justice, like concerns about respect for individual liberties, are understood as ethical considerations external to the moral purpose of public health that served to balance the public health's single-minded function to produce the good of health with other, right making concerns".
Therefore, it appears that the arguments for access to healthcare, in so far as the public health goal is to be achieved optimally by the introduction of a NHIS, rest on notions of justice within a society. Arguably, within our society, justice is realised with regard to the successful implementation of the Bill of Rights – bearing in mind that the Constitution, including the Bill of Rights, is a social contract amongst each citizen with each other and the citizenry of the Republic as a whole with its Government. Accordingly, the Bill of Rights may be the best place to start in relation to what quality of healthcare should be in our NHIS.
It is submitted that measuring quality of care in relation to outcomes is only one way of assessing whether or not healthcare or a NHIS meets the State's obligations, with reference to the terms of the Constitution. A more effective means may be to judge whether or not the NHIS, when it is finally implemented, gives rise to a situation in which those persons subject to the NHIS are treated in such a manner that their other rights in the Bill of Rights are respected within a democracy built on equality, freedom and dignity.
The Bill of Rights contains rights that may influence and inform the quality of care process. Such rights may include: the right to dignity; the right to life; the right to equality; the right to proper and procedurally fair administrative justice; and the right to information. These rights may collectively inform what it is that quality care consists of within the NHIS once it is established.
Certainly, pronouncements by our courts already indicate that a great deal of respect is to be accorded to the individual when making decisions concerning his or her healthcare, which is fundamentally a matter of self determination. For example, the choice whether or not to smoke, whether or not to abuse substances, whether or not to exercise, whether or not to modify or not modify dietary habits, whether or not to drive recklessly, or engage in potentially dangerous sports, whether or not to have an abortion, whether or not to change one's gender, whether or not to end one's life and the means that one elects to do so.
All of these matters indicate the individual's self determination with reference to the individual's rights to dignity, life, equality and self determination. The collective impact of these rights has never been assessed, to the writer's knowledge, within the context of how they would inform the process of determining whether or not quality care is available to an individual receiving or accessing such care in terms of a NHIS, but they are a powerful platform on which to champion quality care.
This debate will unfold properly, within the context of such a rights analysis, in due course. However, a decision concerning the right to life and the right to end one's life is instructive in such an instance. In the matter of Clarke v Hurst NO and Others 1992 (4) SA 630 (D), the High Court was faced with the question of whether or not criminal liability would be visited upon an individual for turning off life support machines.
In such an instance, the High Court decided that, with reference to the legal convictions of our community, it was appropriate to consider an individual's circumstances with reference to his or her quality of life and decide if such a quality would be maintained by artificial means. Following such an evaluation, the quality of the patient's life would determine whether or not it was appropriate to turn off artificial life support. Whilst the debate in this matter was about what was wrongful or reasonable, the debate was informed by an element of quality, which rested on an appreciation of the individual's rights.
The debate concerning quality of care and its role ultimately in a NHIS is one that should be concluded prior to the implementation of a NHIS. The role of quality in the ultimate deployment of a NHIS in the Republic cannot be underestimated and does, in fact, carry constitutional weight within the context of such a NHIS environment.
Certainly, South Africa may learn from the experience of other countries who have dealt with or who are dealing with the implementation of a NHIS. Quality of care issues have arisen in such jurisdictions, but post the implementation of such systems.
Government finds itself in a position where, taking from those lessons and with a keen eye on the Bill of Rights, it must take such measures to implement a NHIS that accords with its responsibility in section 27(1)(a) of the Constitution, but that does not lose sight of the rights that are enjoyed by every individual in every circumstance of his or her life including, but not limited to, the receipt of quality healthcare services within whatever NHIS context.
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