n South African Law Journal - Health care rights, resources and rationing

Volume 124, Issue 3
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



This article considers the impact of justiciable, health-related constitutional rights on the manner in which South African courts respond to the 'dilemmas' occasioned by the rationing of resources available for medical treatment. In an attempt to stimulate debate over the manner and extent to which constitutional rights impact on resource-related decision-making, the article challenges both the discourse of 'inevitable tragedy' that typically permeates discussions over rationing and the concomitant assumption that courts are inappropriate for a for the deliberation of rationing decisions and processes. It then considers the extent to which the health-related rights contained in the 1996 South African Constitution may function as substantive rationing directives, before discussing institutional issues relating to the judicial review of rationing decisions and tentatively suggesting what it believes to be appropriate standards of scrutiny for such decisions. In conclusion, the article argues that, institutional tensions notwithstanding, courts may valuably function as catalysts and public arenas for broader public deliberation over vexed rationing issues.

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