COVID-19: Does the right to health mean the right to a vaccine?
Author: Candice Pillay – Director
When we celebrated Human Rights Day on 21 March 2021, much introspection had taken place in the year since Human Rights Day 2020, which came just days before the first declaration of lockdown to curb the spread of Covid-19. We started with a harsh lockdown at Level 5 and currently sit at Level 1; the economy has reopened, albeit sluggishly, and we now face the prospect of vaccination against the Covid-19 virus.
Much has been said about the vaccine itself, each citizen’s entitlement to be vaccinated as well as criticism of government’s rollout of its vaccination plan. This also raises questions around the very significant human right of access to health care, in light of who is to receive vaccines, when, where, and at what cost.
Section 27 of the Bill of Rights in the South African Constitution, in relation to health care, food, water and social security, states that:
1. Everyone has the right to have access to
a) Health care services, including reproductive health care;
b) Sufficient food and water; and
c) Social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.
2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
3. No one may be refused emergency medical treatment.
Of importance to this discussion is the right of access to health care services in section 27(1) and the right not to be refused emergency medical treatment in section 27(3).
Right to health care services
The National Health Act 61 of 2003 gives meaning to the constitutional guarantee of the right of access to health care by regulating the conditions under which this right is to be achieved. The Act clearly outlines the rights and duties of health care providers, including that the rights of people accessing health carehave to be protected, respected, promoted and fulfilled.
In order to give effect to the right of access to health care, the infrastructure to provide a health care system needs to be in place. This means that health care services must be available, which includes the availability of adequately trained medical staff. Health care services must also be accessible, enabling everyone to access them without discrimination, regardless of who they are or where they live. Finally, health care must be affordable and/or free, and comprehensive.
Acceptable health care services must be provided in a respectful, non-discriminatory manner and afford equal treatment for all. This also means that providers must respect and protect peoples’ rights to confidentiality and their right to provide informed consent. Good quality health care services must adequately respond to what is needed and must maintain their standards through quality assurance mechanisms.
The question then is how the right of access to health care services is realised in the context of the Covid-19 pandemic and South Africa’s roll-out of the vaccine.
On 4 January 2021, the Minister of Health, Dr Zweli Mkhize announced that 1 250 000 vaccines would be rolled out to health care workers in the first phase of the country’s Covid-19 vaccine strategy. Phase 2 would include essential workers, persons in congregate settings, persons over 60 and persons over 18 with co-morbidities. Phase 3 will involve other persons older than 18 years.
By the end of phase 3, according to this plan, 67.25% of the population would have been vaccinated.
A person who falls into any of the above categories would need to know, in terms of their basic human right to health care services, that they can get the vaccine (availability), where to get vaccinated (accessibility), and that it is provided free or at a low cost (affordability), to give true meaning to section 27 of the Constitution.
However, as we reach the end of the first quarter of the year, the vaccine has still not been rolled out as planned. Only 15% of the targeted Phase 1 has been vaccinated, with uncertainty as to when Phase 2 and 3 will really commence. Two vaccines have regulatory approval, while pharmaceutical companies continue to run trials on more vaccines.
In this regard, government has failed its citizens on the first pillar of the right to health care, in that vaccines are not available, nor are they accessible, and it is unlikely that they will be affordable as government continues to look to the business sector for funding for the procurement of vaccines.
Right not to be refused emergency medical treatment
The lack, or slow pace, of rollout of the vaccine raises a second, more important, question and that is whether the administration of the vaccine qualifies as emergency treatment. Assuming that a person does not fall into one of the designated categories earmarked for vaccination but wants to be vaccinated nonetheless, would that person be denied the vaccination? And would such denial constitute refusal of emergency treatment?
The government must consider that it had declared a national state of disaster due to the Covid-19 pandemic, leading to a national lockdown, just over a year ago. As we enter the second year of the lockdown, we are still in a state of disaster and this can only mean that emergency medical treatment must be defined to include not just treatment for those infected but vaccines for those at risk of being infected.
Even within the constraints of “available resources” as provided for in the Constitution, the State must ensure that peoples’ fundamental rights and freedoms are not compromised and/or violated in the process of accessing health care.
Everyone has the human right to health, and not just to basic health care services but to the highest attainable standard of physical and mental health. This places a positive obligation on the government to ensure that it procures the best possible vaccine for its citizens and not sub-standard or “expired” vaccines. It also places the urgent obligation on the government that vaccines need to be made available timeously to be rolled out to all of the population.
Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com