since July 2010

Authors | Paula Proudlock, Katharine Hall ¹

Children’s Right to Health

Section 27 (1) of the South African Constitution provides that everyone has the right to have access to health-care services, including reproductive health care. Section 27 (3) also provides everyone with the right not to be refused emergency medical care. In addition to these rights that are specified for everyone, children have extra protection in that Section 28 (1) (c) provides that “every child has the right to basic health care services”.

The right of everyone to health-care services in Section 27 (1) is a right of ‘access to’ and is dependent on the availability of resources. The State is therefore not obliged to deliver these rights immediately but must at least have a well-designed plan aimed at realising the rights of everyone and must implement this plan reasonably and progressively. In South Africa this plan is set out in various policies, laws and programmes, including the White Paper on the Transformation of the Health Care System (1997) and the new Health Act of 2003.

In order to assess whether the State’s health plan is making progress and whether the design and implementation of South Africa’s policies, laws and programmes is reasonable, international law provides us with some guidance. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides some useful guidance: that everyone has the right to the highest attainable standard of physical and mental health. General Comment No 14, issued by the Committee on Economic, Social and Cultural Rights, provides guidance to the State on what this obligation means:

a) The State must provide a sufficient number of health goods (e.g. medicines), facilities (e.g. clinics), services (e.g. emergency services) and programmes (e.g. the immunisation programme);

b) These goods, facilities, services and programmes must be accessible to everyone without discrimination. This means that they must be physically accessible (within a short travel distance), economically accessible (affordable for everyone), and accessible on an information level (the language used in facilities should be accessible and health-care users should receive sufficient and accessible information to allow for informed health-care choices). The distance travelled to clinics and immunisation coverage are good indicators of whether facilities are physically accessible. The proportion of children on antiretroviral therapy is a good indication of whether the State’s HIV-treatment programme is accessible to HIV-positive children;

c) The goods, facilities, services and programmes must be of a good quality and must be scientifically and medically appropriate.

But where do children feature in this general health plan for all?

The right of every child to basic health-care services in Section 28 (1) (c) of the South African Bill of Rights is a ’right to’ and is not expressly qualified by the availability of resources. This construction in the Bill of Rights can be interpreted to mean that the delivery of a basic package of health-care services to children should be prioritised within the general health-care services plan. The approach of prioritising delivery to children (and to their pregnant mothers) is echoed in the White Paper on the Transformation of the Health Care Services (1997) and in the various programmes aimed directly at children, such as the immunisation programme. However, it does not find expression in the Health Act of 2003.

Again we can turn to international law for some guidance on the State’s obligations to children and pregnant mothers within the general health-care system. Article 24 of the 1989 United Nations Convention on the Rights of the Child (CRC) recognises the right of the child to the enjoyment of the highest attainable standard of health and to facilities to the treatment of illness and rehabilitation of health. In particular, the CRC obliges state parties to take appropriate measures:

a) To diminish infant mortality rates and child mortality rates;

b) To ensure the provision of necessary medical assistance and health care to all children with an emphasis on primary health care;

c) To combat disease and malnutrition through the provision of primary health care, the use of technology, and the provision of adequate nutritious foods, clean drinking water and basic sanitation;

d) To ensure appropriate prenatal and postnatal health care of mothers (the infant mortality rate and number of maternal deaths are good indicators of whether the health care being provided for mothers is accessible and of good quality);

e) To ensure that society, in particular parents and children, has a basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

f) To develop preventive health care, guidance for parents, and family planning education and services (the proportion of teenagers who have ever been pregnant can reflect on whether the State’s family-planning services and education programmes are having an impact).

Immunisation coverage is one of the indicators that the United Nations Committee on the Rights of the Child considers when assessing whether the State is taking “appropriate measures” to further the realisation of (a) – (c) listed above.

With the above-described constitutional and international obligations to prioritise the delivery of a basic package of health-care services to children, it is imperative that we monitor and track South Africa’s progress in giving effect to these obligations. Two of the most telling indicators of a country’s commitment to and progress in the prioritisation of children’s health rights are the infant mortality rate and child death rate. These two indicators are used world-wide as barometers of measurement of equality, poverty rates, and the accessibility and quality of health-care services. They feature prominently in the Millennium Development Goals which South Africa ratified at the Millennium Summit in 2000 and re-endorsed at the United Nations Special Summit on Children in 2002. In terms of these goals, South Africa has committed to reduce (by 2015) infant and child mortality rates by two-thirds, and maternal mortality rates by three quarters. For information on how South Africa is progressing towards these goals, click on the indicators listed below.

Distance to the nearest clinic
This indicator reflects the distance from a child’s household to the nearest clinic. The nearest clinic is regarded as “far” if a child would have to travel more than 30 minutes to reach it, irrespective of mode of transport.

HIV prevalence in children
The proportion of children, at a given period, who have HIV infection. For example, the prevalence of HIV infection for children today would mean all the children that are HIV positive today, out of the total number of children in the country.

Note: The first six indicators listed above have been selected based on rigorous review processes outlined elsewhere (inventory of child health indicators). The indicators selected were based on the following four main criteria:

accessibility,

validity,

reliability,

and relevance.

Furthermore, each indicator is linked to an internationally recognised goal which countries strive towards in an attempt to fulfil children’s socio-economic rights. At a national level, each health indicator is linked to the Department of Health’s strategic objectives which are then manifested through a range of programmes and interventions.

HIV prevalence in pregnant women
This indicator shows the prevalence of HIV that is measured in a national survey of women attending public-sector antenatal clinics for the first time in their current pregnancy.

Children starting ART
The indicator reflects the number of children who are receiving antiretroviral therapy (ART), as a proportion of children who require and should be on antiretroviral therapy.

Adult access to ART
This indicator reflects the number of adults who are receiving antiretroviral therapy as a percentage of the adults who require, and should be on, antiretroviral therapy but are not yet getting it.

Access to PMTCT: HIV testing
This indicator is the proportion of women attending public antenatal clinics who are tested for HIV as part of the prevention of mother-to-child transmission (PMTCT) programme.

Child mortality (IMR & U5MR)
The number of children younger than five years old who die in a year, per 1,000 live births during that year. It is a combination of the infant mortality rate, and the 1 – 4 years mortality rate.

Teenage pregnancy
The percentage of women aged between 15 – 19 years who have ever been pregnant, by population group and province.

Immunisation coverage of children
This indicator refers to the percentage of children younger than one year who are fully immunised.

¹ Children's Institute