Litigating and adjudicating the right to health

Following on my PhD thesis (2006), which conducted a benefit-focused analysis of South African courts’ health law and health-related socio-economic rights rights jurisprudence, I have published a large number of (mostly theoretical) peer reviewed academic articles on different topics relating to asserting, enforcing, implementing and adjudicating health-related constitutional rights. Areas of law traversed by these include medical negligence law, health systems law and public health law. My research on health and human rights culminated in the publication, in 2014, of “Can Rights Cure? The Impact of Human Rights Litigation on South Africa’s Health System” (see “books”).

Some of these articles are profiled here. Feel free to email me if you would like a copy of any of them.

Balancing socio-economic rights: Confronting Covid-19 in South Africa’s urban informal settlements

(2021) 39(1) Nordic Journal of Human Rights 33-50 DOI 10.1080/18918131.2021.1918433

Considers the reconciliation of seemingly clashing rights to housing in health in the context of the initial South African state response to Covid-19 in urban informal settlements.

Urban governance and the right to a healthy city

(2020) 2 European Yearbook of Constitutional Law 185-197 DOI 10.1007/978-94-6265-431-0_9

This paper briefly reflects on urban governance as a determinant of health and considers how urban local governments can and do work to protect and fulfil the right to health.

Geography, marginalisation and the performance of the right to have access to health care services in Johannesburg

(2016) 20 Law, Democracy & Development 1-19

Explores performative dimensions of the right to health by focusing on the way in which it is exercised in urban space, specifically in the city of Johannesburg. A number of targeted municipal health initiatives are evaluated accordingly.

Impeding access? Stigma, individual responsibility and access to post-HIV-exposure prophylaxis (PEP) in South Africa

(2011) 30 Medicine and Law 279-294

Exposits and criticizes the stigmatizing manner in which South African law restrictively structures access to PEP treatment for HIV.

Disentangling illness, crime and morality: Towards a rights-based approach to HIV prevention in Africa

(2011) 11 African Human Rights Law Journal 57-74

Argues against the tendency towards knee-jerk, punitive approaches to safeguarding public health in African legal systems, with particular focus on a tendency towards criminalization of HIV-transmission.

Legislative and executive translation of the right to have access to health care services

(2010) 14 Law, Democracy and Development 1-25

Considers the legislative and executive fostering of rights regimes and the translation of abstract constitutional rights into concretely claimable entitlements.

Health, social movements and rights-based litigation in South Africa

(2008) 25 Journal of Law and Society 364-388

Investigates the impact of rights-based litigation on social struggles in the South African health sector, in the particular context of the struggle for universal access to anti-retroviral treatment for HIV/AIDS.

The interdependence of rights to health and autonomy in South Africa

(2008) 125 South African Law Journal 553-572

Considers interlinkages between judicial approaches to autonomy-related rights and the right to health.

Health care rights, resources and rationing

(2007) 124 South African Law Journal 514-536

Contemplates rights-based judicial scrutiny of medical rationing decisions.

Indirect horizontal application of the right to have access to health care services

(2007) 23 South African Journal on Human Rights 157-159

Considers ways of enforcing constitutional socio-economic rights in the private sphere, with a focus on the development of private law pertaining to the delivery of health care services.

The potential of socio-economic rights litigation for the achievement of social justice: Considering the example of access to medical care in South African prisons

(2006) 50 Journal of African Law 118-131

Illustrates how disparate individual judgments on prisoners’ constitutional entitlement to receive medical care have over time accumulated in a remedial framework advancing access to health care services in detention more broadly.