The national provincial interplay in SA health

Over the past few years and on varied scales, we have seen provincial health systems in a state of collapse. We have seen challenges with infrastructure, staffing, drug stock outs, provision of emergency medical services, lack of equipment and health facility management; all pointing to the collapse of a heath system. These challenges have been experienced in many provinces some of which cater for the most vulnerable in our society. The Minister and the National Department of Health often tell us that there is not much they can do because provinces are autonomous.

To what extent is this true and what are the restrictions on the National Department of Heath intervening in provincial health systems? To answer these questions, we need to first understand the governance framework, the nature and obligations created by the right to health and the constitutional and statutory mechanisms available.

Governance framework

South Africa has a unitary but decentralised system of government. It states in Section 40 (1) of the Constitution: “government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated”. The ‘distinctive’ element indicates that each sphere exists in its own right and thus each sphere is the final decision-maker on a defined range of functions and is accountable for its decisions. The ‘interdependent and interrelated’ elements indicate the need for cooperation between spheres of government

The Constitution allocates government functions on either an exclusive or shared (concurrent) basis. The national government is exclusively responsible for legislation on defence, foreign affairs, the criminal justice system, (safety and security, courts), higher eduction, water and energy resources and administrative functions such as home affairs and tax collection.

The bulk of social services are shared competencies between national and provincial government, and include school education, health services, social security and welfare services, housing and agriculture. In these areas the national government is responsible for policy formulation, determining the regulatory frameworks including setting norms and standards and overseeing the implementation of the these functions. The provinces’ function is largely that of implementing national legislation and drafting and implementing provincial legislation. There however are a number of limited exclusive provincial functions, including granting of liquor licences, provincial roads, ambulance services and provincial planning. Municipalities are responsible for the provision of basic services, such as water, electricity, refuse removal and municipal infrastructure. These functions are performed within nationally and provincially set regulatory frameworks.

Cooperation, oversight and intervention

Guiding the relations of the three spheres of government is the principle of cooperative governance. The principles for this kind of cooperation are laid out in the Constitution and include a duty to provide effective, transparent, accountable and coherent government. Cooperative governance obliges the national, provincial and local spheres of government to cooperate, legally enforcing negotiation, rather than litigation, in resolving any political disputes that might arise between them.

This means that within the regulatory frameworks and subject to oversight, provinces and municipalities enjoy relative autonomy, remaining accountable to their constituencies to reflect their policy preferences. However, they are required to exercise their powers to the common good of the country as a whole by co-operating with the other spheres. In this sense the spheres are “interdependent”; only collectively and in cooperation with one another can they provide government that meets the needs of the country as a whole.

Provincial executive authority is also qualified in section 125 (3) of the Constitution, which provides that the provinces have the executive authority to implement national legislation (within the functional areas set out in schedules 4 and 5):

“only to the extent that the province has the administrative capacity to assume effective responsibility. The national government, by legislative and other measures, must assist the provinces to develop the administrative capacity required for the effective exercise of their powers and performance of their functions.”

Where necessary, when constitutional or statutory obligations are not fulfilled, national government may intervene. Section 100 of the Constitution states that:
“when a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including:
• issuing a directive to the relevant provincial executive stating steps that may be required to meets its obligations; and
• assuming responsibility for the relevant obligation in that province to the extent necessary to:
• maintain essential national standards or meet established minimum standards for the rendering of a service;
• maintain economic unity;
• maintain national security; and
• prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.”

Focus on health services

The need and mandate for cooperation is particularly acute in the health sector. Section 27 of the Constitution provides for the right of access to health care services for everyone. To ensure that this right is further given effect to the state is obliged to take reasonable legislative and other measures within available resources to achieve the progressive realisation of the right.

The National Health Act 61 of 3003 (“NHA”) gives effect to section 27 of the Constitution and lays the foundations of the health care system. The NHA proclaims its objective as, inter alia,
“to provide a framework for a structured uniform health system within the Republic, taking into account the obligations imposed by the Constitution and other laws on the national, provincial and local governments when it comes to health services” and (emphasis added)

“to provide for a system of co-operative governance and management of health services, within national guidelines, norms and standards, in which each province, municipality and health district must address questions of health policy and delivery of quality health services.” (Emphasis added.)

Various duties and obligations are set out in the NHA for the various role players. Section 3 of the Act states that the Minister must endeavour to protect, promote, improve and maintain the health of the population and ensure the provision of essential health services. Furthermore section 25(1) of the NHA stipulates that the provincial MECs “must ensure the implementation of national health policy, norms and standards in his or her province.”

The duties of the provincial heads of health are set out in section 25 (2) and (3). These include the duty to develop strategic health plans, to submit such plans to the Director- General, and to ensure that a provincial health plan is in conformity with national health policy.

The NHA also makes provision for the establishment of a National Health Council made up of all the provincial MECs for health and is meant to advise the Minister of Health. Its composition is mirrored by the provincial health councils created by sections 26 and 27 of the NHA. The provincial councils are responsible for advising the provincial department on health policy and include members of municipalities, local and provincial government.
The legislated interaction between the national and provincial departments of health is therefore clear.

What does this all mean in REAL terms?

It all means that there simply isn’t any excuse for the National Department of Health to “stay out of” failing provincial health systems. This is so for a number of reasons.

First: the nature of the right to health. The right to health cannot be realised without functioning public health care facilities, and properly implemented programmes. It cannot be realised without available trained medical personnel, providing and dispensing essential medical services and medicines. It is literally a “life and death” right and when inadequately provided, the adverse effects on communities and particularly vulnerable groups are clear. In addition one person’s health affects others.

Second: the National Health Act establishes a uniform health system with both national and provincial departments of health playing a role in that system. Our framework states unequivocally that it is the duty of the national department to ensure that national policies are implemented. In addition, reporting obligations on various provincial heads exist; the reports and plans are submitted to the Director General. This is demonstrates the level of oversight and monitoring required from the National Department of Health. These powers are far-reaching and clearly go beyond policy-making. They suggest that the National Department of Health has a role to play in ensuring that the health system works, including where provincial health departments are running services.

Third: there are powers beyond the NHA. The Constitution makes provision for the national executive to intervene when a province is unable to fulfil its constitutional or statutory obligations. This is an important power which allows the national executive to either issue directives to remedy the problems or assume the obligations and ensure their fulfilment.

Conclusion

Provincial autonomy is real and constitutionally mandated, thus this principle must be respected and enforced. This principle however does not exist in isolation. Alongside autonomy is a collective duty for cooperation and interdependence – equally as important. Thus what the Constitution requires, and infact demands, is a balance. A balance which takes into account the duty on the state to respect, protect, promote and fulfil the rights in the Bill of Rights and principles of cooperative governance.