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Arguments involving rights of language in healthcare in South Africa are principally based on the interpretations of international and national human rights charter’s or codes. At an international level, documents such as the Universal Declaration of Linguistic Rights (UDLR), the International Covenant on Economics, Social and Cultural Rights (ICESCR) and the World Health Organisation’s (WHO) Right to Health Factsheet have been used as reference points for arguments for rights of language in the healthcare system as they have been cited in this chapter.

At a national level, The Constitution of the Republic of South Africa, the Bill of Official Languages, the National Health Insurance Policy and the Policy on Language Services will be used to advance this argument at the level of the national legislative context. The section that follows provides a brief overview of some of these national pieces of legislation where access is concerned.

2.9 .1 T he C o n stitu tio n o f th e R e p u b lic o f Sou th A fr ic a

South Africa’s Constitution (1996) is based on the assertion that the right to access to language rights and the right to healthcare fall under the realm of universal human rights. There are several sections in the Constitution of the Republic of South Africa (1996) which have applicability to the rights of access to services in a language most desired by the recipient of the service. Section 6 (3) (a) (b) and section 6 (4) contain language related provisions for national and provincial governments.

It states that:

Government departments must use at least two of the official languages, subject to considerations of practicality, expense, regional usage and circumstances, and the needs and preferences of the public as a whole, or in the province concerned.

It also stipulates that local governments must take into account the language usage and preferences of their residents.

This means that a province such as the Eastern Cape and towns such as Grahamstown and Cofimvaba where this study is based, that have IsiXhosa as the Mother tongue language of majority of the population, should provide services in that language. Based on the above Constitutional clause, the needs and preferences of the public as a whole would require IsiXhosa to be one of the two official languages public services are provided in.

Section 9 (3) protects against the unfair discrimination on the grounds of language, while sections 30 and 31 (1) refer to people’s rights in terms of cultural, religious and linguistic participation. The denial of one’s language preferences amounts to discrimination on the grounds of language.

Section 2 states that Constitutional obligations imposed must be fulfilled but, however, Section 2 (27) (c) states that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. This conditions the realisations of these rights on the availability of resources. The consequence is that in the event that the state does not have resources the right only exists on paper and not realised. Bamgbose (1991) refers to this as ‘an escape’ clauses characteristic of language policies in Africa.

2 .9 .2 U se o f O ffic ia l L a n g u a g es A ct

In 2012, the Use of Official Languages Act was introduced. This Act is based on the Constitutional provision of eleven official languages and recognition of the diminished use and status of indigenous languages. It recognises the requirement for the state to take practical and positive measures to elevate the status, and advance the use of indigenous languages.

The Act regulates and monitors the use of official languages for government purposes by national government and promotes parity of esteem and equitable treatment of official language of the Republic of South Africa. It also seeks to facilities services and information of national government and to promote good language management by national government for efficient public service administration in order to meet the needs of the public (2012: 3). The Act stipulates that all national departments, national public entities and national public enterprises must adopt a language policy regarding its use of official languages.

The Act also provides for the establishment of a National Language Unit within the Department of Arts and Culture and the establishment of language units in national departments, national public entities and national public enterprises.

In line with the provisions of the Constitution together with the stipulations of the Use Of Official Languages Act; the National Department of Health passed the Policy on Language Service which seeks to address language needs within the department. However there are no indications from both the Department of Arts and Culture and the Department of Health on any progress of implementation these policies. This could therefore be a case of declaration without implementation as Bamgbose argues (1991:120).

2 .9 .3 N a tio n a l H ea lth In su r a n c e (N H I)

As part of the healthcare system reform, the national Department of Health released the NHI Green Paper in 2011 which spells out the need and objectives of a National Health Insurance system for South Africa. Currently the government spends 8.3% of its Gross Domestic Product on health which is above the WHO recommendation of 5%. The 8.3% spent on health is inequitably split however with 4.1% spent in the private sector and 4.2% spent on the public sector. The 4.1% spend covers 16.2% of the population, (8.2 million people) who are largely on medical aid schemes. The remaining 4.2% is spent on 84% of the population (42 million people) who mainly utilize the public healthcare sector (South African National Treasury: Intergovernmental Fiscal Review, 2010). This means that the government spends almost five times as much on health for someone making use of the private sector than someone who makes use of public healthcare services. The NHI seeks to remodel the financing system of the South African healthcare system in an attempt to redress the structural inequalities which exist between public and private healthcare.

The National Health Insurance is aimed at providing universal healthcare coverage. Universal healthcare coverage as defined by WHO “is the progressive development of a health system including its financing mechanisms into one that ensures that everyone has access to quality, needed health services and where everyone is accorded protection from financials hardships linked to accessing these health services” (Department of Health, 2011:16-17). An NHI White Paper was released in 2015 and the NHI is currently in its second year of pilot stage. The Minister of Health, Dr Motsoaledi made the following statement in relation to the South African Health system:

The current health system is unconstitutional, inefficient, not accessible, and unequal and undermines human dignity. Health financing is not universal and it marginalizes the poor and the disadvantaged. There is a moral imperative and ethical obligation for the South African health system to be changed for the better. There are also duties for the State and civil society that should be undertaken in a manner that ensures that the health and wellbeing of the South African citizen are adequately catered for. As government proceeds with the phased implementation of NHI, South Africans must make informed trade-offs in order to design a fair system, (Department of Health, 2011).

The NHI is based on the following principles -

• Right to access - Section 27 of the Bill of Rights of the Constitution states that everyone has the right to access to healthcare services including reproductive healthcare and the state must take progressive realisation of these rights. The reform of healthcare is an important step towards the realisation of these rights and the key aspect of this is that access to health services must be free at the point of use and that people will benefit according to their health profile (Department of Health, 2012: 16) • Equity - this refers to the health system that ensures that those with the greatest health

needs are provided with timely access to health services. It should be free from any barriers (which may be regulatory, cultural, geographic and administrative) and any inequalities in the system should be minimised. Equity in the health system should lead to expansion of access to quality health services by vulnerable (the poor and needy) groups (Department of Health, 2012: 16).

The significance of the NHI is that it makes provisions for universal healthcare coverage and universal access to healthcare services.

This presupposes that the provision of universal healthcare coverage will lead to increased access to healthcare. However, despite universal health coverage, patients who lack proficiency in English may not have access to the same quality of care as those who do not. Primary healthcare improvement is centred on health promotion, prevention and community involvement, none of which can occur without an acknowledgement of the multilingual nature of South African society (Hussey: 2013: 194). The Core Standards - a framework created by the Department of Health, for the assessment of health establishments - make no mention of the language barrier or even acknowledging it as a challenge to service-delivery quality (ibid). The Negotiated Service Delivery Agreement (NSDA), an intersectional government agreement aimed at “a long and healthy life for all South Africans”, describes ways to increase patient care and satisfaction - but it too does not mention language. This ultimately demonstrates a lack of recognition or interest in the importance of language in accessing healthcare services (ibid). The Patients’ Rights Charter and the National Health Act (Act 61 of 2003) mention that services must be in a language that is understandable but this mere mention is perfunctory rather than enforced and prioritised in policy and its implementation.

2 .9 .4 P o licy on L a n g u a g es S erv ices

The Department of Health passed a “Policy on Language Services” in 2011. This policy aims to facilitate equitable access to government services and information as well as respect for language rights as spelled out in the Constitution. The Policy on Language Services further aims to promote multilingualism in the National Department of Health and to allow people to access information in a language that they know best, allow them to understand important messages and allow them to understand the discourse necessary for participatory decision making, (2011:1). The implementation of this policy in the healthcare system will serve to increase access to care, improve the quality of care, health outcomes and health status, increase patient satisfaction and enhance or ensure appropriate resource utilisation, (2011:1). All government structures are bound by the provisions of the policy and is to be applied to all personnel working for the National Department of Health, (2011:03).

The policy is based on the legal framework of Section 6 (3) and 6 (4) of the Constitution whereby government departments must use at least two of the official languages, subject to considerations of practicality, expense, regional usage and circumstances, and the needs and preferences of the public as a whole or in the province concerned. This obliges national and provincial departments to regulate and monitor their usage of official languages to ensure parity of esteem and equitable treatment, (2011: 2). The objectives of the policy is to make departmental services responsive to the needs of clients who are unable to communicate effectively in spoken or written English and to ensure that the rights of the client to access government funded services will not be compromised by their inability to effectively communicate in Spoken or written English or require alternate modes of communication (2011:3).

The passing of this policy is therefore in response to the realisation that language in South Africa can pose a barrier to the provision and access of healthcare services. As previously mentioned the evaluation of the implementation of this policy formed part of the objectives of this study.

2.10 CONCLUSION

The aim of this chapter was to provide the theoretical and analytical background to the subject of this study, that is, language and access in the healthcare system. The chapter highlighted how languages are planned, and the regulations regarding the plans reflect a vision that government has for its citizens. Language planning can also take place as a response to existing language problems that is not necessarily only a function of government: the general citizenry also ought to be involved in the process.

Language planning and policy in the African context has been marred by challenges resulting from the colonial legacy, negative perception on multilingualism, national integration and other factors as discussed and how to overcome these.

The chapter also looked at the right to language and the right to healthcare. Here I argued that language rights are as important as other human rights and the realisation of linguistic human rights help facilitate the access to healthcare. This chapter also highlighted other determinants of access to healthcare which relate to cultural safety and intercultural communication. Here I argued for the social function of language and power relations involved in that.

The chapter also argues that policies aimed at increasing access to healthcare or the provision of universal healthcare need to take the importance of language into cognisance. Although the South Africa Department of Health has already passed a policy in this regard; the matter lies in the implementation of such a policy.

My study is focused on examining whether language is a barrier to accessing healthcare services at the hospital. Other similar studies (see Soahatse 1998, Crawford 1999, Watermeyer, J. and Penn, C. 2009, Levin 2011) have not focused on the National Department of Health’s Policy on Language Services. This could be because these studies were done before the passing of the policy. My study will provide a critique of the policy as it relates to language rights and the delivery of health services, focusing on the roll out and implementation process and the public awareness of the policy.

CHAPTER THREE: RESEARCH METHODOLOGY

3.1 INTRODUCTION

As indicated in Chapter one, this study adopts an ethnographic qualitative research method. This chapter outlines the research method used in collecting and analysing data for this study. The chapter sets qualitative research methodology and its appropriateness for this research as opposed to the quantitative methodology. This chapter then goes onto discussing the various data collection tools which comprised of interviews, non-participant observation and focus group discussions and further discusses the participants in the study, the research sites, ethical considerations and limitations of the study.