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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Indirect horizontal application of the right to have access to health care services
Author:Pieterse, MariusISNI
Year:2007
Periodical:South African Journal on Human Rights
Volume:23
Issue:1
Pages:157-179
Language:English
Geographic term:South Africa
Subjects:social and economic rights
access to health care
Bill of Rights
private law
jurisprudence
Abstract:Apart from their direct application against the State, the justiciability of socioeconomic rights also requires the transformation of those aspects of private law that regulate relationships which are crucial for their effective enjoyment. This is acknowledged by the Constitution of the Republic of South Africa, 1996, which determines that rights may sometimes bind private parties and requires courts to develop the common law in accordance with the spirit, purport and objects of the rights in the Bill of Rights. Common-law development is a viable remedial paradigm for the horizontal enforcement of socioeconomic rights. This is particularly because the value-based development of common law in the course of private-law litigation is often regarded as an uncontroversial aspect of the judicial function, even in legal cultures to which the notion of rights-based judicial review is novel or alien. To illustrate the necessity of infusing the private law realm with public law values associated with the protection of socioeconomic rights, the article considers the effect of the constitutional right of access to health care services on the body of South African private law pertaining to the regulation of the doctor-patient relationship. After making a case for the seepage of public law norms into the private-law regulation of this relationship, the article points to certain features of such regulation that appear in need of reconceptualization in light of relevant constitutional guarantees. It then suggests certain modifications to the existing legal position and critically discusses case law in which similar developments have been contemplated. Notes, ref., sum. [Journal abstract]
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