NHI litigants have slammed a bid by the Health Ministry to consolidate five separate legal challenges to the National Health Insurance Act and to put them on hold – pending the outcome of a Constitutional Court case – accusing it of deliberately delaying matters.
The Ministry says its proposal is a “pragmatic solution” to the many court cases challenging the Act, but doctors’ and medical aid organisations argue that it’s another stalling tactic aimed at pausing their litigation, reports the Sunday Times.
The Act faces six separate legal challenges from Solidarity, the Board of Healthcare Funders (BHF), the Health Funders Association (HFA), the Hospital Association of SA (Hasa), the SA Medical Association (SAMA) and SA Private Practitioners Forum (SAPPF).
And now the Treatment Action Campaign (TAC) has entered the fray, applying to join the case brought by SAMA, marking the first major representative of the public sector to oppose the Act.
Business Day reports that the BHF and SAPPF secured an initial victory in May with a judgment from the High Court affirming it had jurisdiction to hear their legal challenges and ordering President Cyril Ramaphosa to furnish the record of his decision to assent to the legislation. He then appealed to the Constitutional Court to overturn the judgment.
The Health Minister has now filed an application seeking to stay all legal proceedings challenging the constitutionality of the Act until the President’s appeal is resolved. This affects the cases brought by Solidarity, Hasa, SAMA, the HFA and SAPPF, according to papers filed by Health deputy d]irector-general Nicholas Crisp.
Additionally, the Minister has offered to suspend implementing section 33 of the Act while proceedings are stayed – the section contains provisions that slash the role of medical schemes, limiting them to only offering cover for services not provided by NHI.
The HFA, Hasa, SAPPF and Solidarity have opposed the Minister’s stay application, while SAMA said it would abide by the court’s decision.
HFA CEO Thoneshan Naidoo said the offer not to implement section 33 was a hollow gesture, as he had previously said in court papers that it would take 10-15 years to implement NHI anyway.
“He’s offering something he knows could not be implemented,” Naidoo said.
Staying legal proceedings would allow the Minister to proceed with NHI and do irreparable harm to the country, he added, citing research from Genesis Analytics submitted with HFA’s court papers. Genesis concluded NHI would cost more than R900bn a year – R410bn more than SA’s total health expenditure – and require raising taxes to unfeasible levels.
However, the Health Department said consolidation would be more efficient and save money. “It will be a waste of the court’s time and taxpayers’ money to try to deal with the same matter in different courts,” spokesperson Foster Mohale said. “The risk is different courts may arrive at different conclusions on the same matter – that would then have to be appealed.”
Solidarity spokesperson Anton van der Bijl said: “While the government wants to stay the process … they do not want to stay the Act’s implementation and are willing to waste hundreds of millions of rands of taxpayers’ money. This is ridiculous.”
Interlocutory
Apart from the separate legal challenges pending, and the litigation pending at the Constitutional Court, there are also “interlocutory” applications – applications made during the bigger cases, reports Sunday Times.
“Taken together, there are 17 different substantive applications in respect of the NHI Bill and/or NHI Act that include eight in the Constitutional Court (and) nine in the High Court,” said principal state law adviser Geofrey Mphaphuli, on behalf of the President, in the court papers.
Mphaphuli said the NHI Act was “an ambitious and critical attempt to address the structural inequities in South Africa’s healthcare system”, and had been “informed by international best practice”.
Crisp justifies
Crisp described the High Court cases as applications of “unprecedented volume, factual density and constitutional complexity”.
To defend them all separately, and all at the same time, would involve “extensive financial, time and human resources”. Yet it may “ultimately prove entirely unnecessary”, because the Constitutional Court may short-circuit everything.
But opponents will only agree to a stay if the government undertakes to put the implementation of the Act on hold entirely, saying the Minister’s offer is not good enough. It related only to the last step in the implementation of the Act, they added.
“There can be no ‘stays’ while the executive pushes on with implementation,” said Hasa.
The SAPPF said the stay was premised on “speculative, indefinite and remote events”. Moot High Court cases were just one possible outcome of the Constitutional Court proceedings; there were several others.
For example, the Constitutional Court could find it did not have exclusive jurisdiction and direct the whole debate back to the High Court. Meanwhile, the High Court litigation would have stalled and there was “just no telling how long Hasa is expected to wait”, said its CEO, Dumisani Bomela.
Hasa was not a party to the Constitutional Court litigation, had no control over it and had a right to have its case adjudicated, he said. Yet, if there were a stay, it could be years before it got under way.
In the meantime, the stay would “in effect, clear the path for implementation (of the NHI Act)”, said the SAPPF’s Simon Strachan. He said constitutional harm was “already occurring”.
The NHI Act was already having a “profound and detrimental impact on constitutional rights – particularly the rights of healthcare professionals and those seeking to enter the profession”.
One of these was that the NHI Act did not provide for specialist services, he said.
Specialists were “in limbo” about “how, or even if, they will be a part of NHI because the NHI Act adopts a hospital-centric view … with no accommodation for or recognition of specialists in either the private or public sector”.
The country already faced a “brain drain” of doctors and a survey of its members indicated that the NHI Act was a “major push factor” towards emigration, he said.
“This exodus and decline in future practitioners poses an immediate and long-term threat to the quality and availability of health care in South Africa,” Strachan said.
Part of Hasa’s case is that the Act is not financially feasible. “The government has enacted and will start implementing legislation without knowing how much it will cost,” said Bomela.
“The harm, certainly on a financial level, is thus immediate. The Minister’s undertaking does not address these harms.”
Solidarity said money had already been spent to implement the NHI. “The stay would allow the state to spend vast amounts of money on the creation of yet more bureaucratic structures when public facilities are in a dire state,” said the organisation’s Anton van der Bijl.
“All this while challenges to the constitutionality of the statute remain in limbo. This is simply reckless.”
Strachan said: “If the Minister and the President were so certain of the lawfulness of their conduct and the constitutionality of the Act, then they would encourage the expeditious resolution of the challenges confident that they would be vindicated by the courts.”
Crisp said a stay would prevent parallel litigation in the High Court and the Constitutional Court and the “risk (of) divergent judgments … being handed down simultaneously on the question of the constitutionality of the same Act”.
But Strachan said there was no risk of divergent judgments because the questions before the High Court and the Constitutional Court were entirely different. The Constitutional Court litigation concerned the President’s conduct – its lawfulness and its rationality. The High Court litigation concerned the NHI Act and its provisions. They were “fundamentally different legal enquiries”.
TAC also on board
Meanwhile, the Treatment Action Campaign (TAC) has applied to join SAMA’s legal challenge as an amicus curiae (friend of the court), saying it wants to bring in the perspective of patients who rely on the public health system, reports Business Day.
The TAC said its repeated warnings – that the Act would have a detrimental effect on people who relied on the public health system – had been ignored.
It had made detailed submissions at every step of the policy and legislative process, to no avail, TAC general secretary Anele Yawa said in papers. If successful in its application, it planned to focus on three legal arguments: the lack of transparency and public participation provisions in the Act; the weak governance structure of the board of the NHI Fund; and the regression in universal health coverage for people depending on the public health system.
Given the scale of the contracting to be undertaken by the Fund, it is crucial that its activities are transparent, said the TAC’s legal representative Sasha Stevenson, executive director of public law advocacy group SECTION27.
Without strong governance structures and processes, the fund would be inefficient, susceptible to corruption, and in all likelihood fail to deliver, Yawa said. The people at greatest risk from these failings were those who could not afford to buy their way out, he said.
He added that the Act’s provisions for asylum seekers, undocumented migrants and Southern African Development Community nationals, who enter SA illegally, were regressive and at odds with the Constitution and the National Health Act.
These groups were currently entitled to free primary health services, free healthcare for pregnant women and children under six, and hospital services that may be subject to means-tested fees.
But the Act limits their access to emergency health services and notable conditions of public health concern, thus undermining SA’s fight against HIV/Aids, and being at odds with the government’s plan for combating the disease, Yawa said.
In reponse to its application, Crisp said the TAC’s overall partisan position, “which it espouses unashamedly, was better suited to making it a litigant rather than a friend of the court”.
By supporting SAMA’s bid to set aside the legislation, the TAC had adopted a “narrow and one-sided approach” that promoted the interests of the private sector at the expense of the public sector, he added.
Sunday Times article – NHI critics cry foul over new court twist (Restricted access)
Business Day PressReader article – Litigants in firing line (Open access)
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