Parliament's Health Committee has received conflicting legal opinions on the National Health Insurance Bill, leaving MPs with an unexpected headache as they finalise deliberations on the proposed law, notes MedicalBrief.
While Parliament’s Legal Services (PLS) warned that several of the provisions – including those on medical schemes and asylum seekers – could give rise to a constitutional challenge, the office of the state law adviser disagreed, saying the Bill met constitutional muster, reports Business Day.
The PLS had also highlighted some inconsistencies in wording, attributing the incorrect powers to Ministers that should be within the Presidency, as well as instances where people’s rights to access healthcare would be under threat.
“The role of medical schemes will be fundamentally altered once the NHI is fully implemented,” said parliamentary legal adviser Sueanne Isaac, referring to clause 33 of the Bill stating that medical schemes may provide cover only for “complementary services” not covered by the NHI Fund, once it has been fully implemented.
This “removal” of medical aids from the picture has been one of the biggest points of debate: medical schemes would be prohibited from covering anyone for medical care that is covered by the fund.
The only time patients would be able to lean on medical aid cover is when their procedures are not covered by the NHI, they fail to follow the lines of referral, or the treatment they seek is not deemed medically necessary.
In these cases, patients will have to fund their own healthcare, either through private insurance, medical aid or out-of-pocket, reports BusinessTech.
Unfortunately, the Bill’s wording severely restricts what private insurance and medical aid are able to fund and makes no provision for what people should do should they opt not to use the NHI, so uncertainty around this persists.
Clause 33 of the NHI Bill provides for the role of medical schemes as follows:
“Once National Health Insurance has been fully implemented as determined by the Minister through regulation in the Gazette, medical schemes may only offer complementary cover to services not reimbursed by the fund.”
However, the PLS said this aspect of the Bill could push the proposed legislation into a constitutional trap, and additionally, it does not provide much detail on how medical schemes will operate once enacted.
Nor is it clear how current medical scheme users will access healthcare services during the Bill’s phased implementation.
“This creates legal uncertainty. The NHI is funded by mandatory prepayment. It is not clear if medical scheme users will be required to make the mandatory prepayment while still paying for their medical scheme contribution while the NHI is not fully implemented,” the PLS said.
“Further, as the full benefits available on NHI have not yet been determined, it is unclear to what extent it will affect the rights of those currently receiving medical treatment via medical schemes.”
The PLS noted that some submissions had already argued that dictating to users where they can go and what treatment they can get violates the right to access to health and the freedom of association.
“The Constitution requires that the state must take reasonable legislative and other measures, with its available resources, to achieve the progressive realisation of right including in respect of access to healthcare services.
“If medical scheme users suffer a reduction in access to health care because of full implementation of the NHI, this will give rise to a constitutional challenge based on a violation of section 27 (1) of the Constitution,” Isaac warned.
Section 27 (1) of the Constitution says everyone has the right to access health services.
Additionally, the Bill’s provisions for asylum seekers prohibits their access to primary health care, reproductive health services and antiretroviral therapy, a retrogressive move that cannot be done without compelling justification, which the Health Department failed to provide, she said.
Section 27 (2) of the Constitution provides for progressive realisation of access to health services.
By contrast, in her legal opinion, deputy chief state law adviser Ayesha Johaar denied that the Bill infringed any fundamental rights in an unlawful way. The provisions had been considered to ensure they aligned with the Constitution and other legislation, she said.
Freedom Front Plus MP Philip van Staden said he would seek legal advice on the conflicting positions put forward by the state law adviser and Parliament’s legal services.
Even if the ANC-dominated committee made the changes recommended by Parliament’s legal services, it was still likely to face legal challenge, he said.
“I foresee, and have warned the ANC, that this Bill will spark huge legal action,” he said.
Isaac warned about the Bill’s proposed reduction of the role of provincial Health Departments, which is coupled with proposed amendments to the National Health Act, saying provinces might reject the plans when the National Council of Provinces considers the Bill.
Provincial Health Departments would be stripped of most of their functions, and the Minister would be given the power to determine their role in regulations to the Act. These functions were a substantive matter and should not be delegated to the Health Minister to determine in regulations, said Isaac.
She raised concern about the governance of the fund, noting that clause 11, dealing with investigations, requires the fund to investigate itself. The Bill should stipulate that investigations must be conducted independently and without interference from the Minister, the board and third parties, she added.
Isaac said the proposal to exempt all transactions in terms of the NHI Bill from the Competition Act was not in line with the Constitution’s provisions for competitive and cost-effective procurement. Only the NHI Fund should be excluded from the Act, she said.
On the funding of the NHI, which is still unclear, the Department of Health has floated the idea of a payroll tax or surcharge, which the unspecified groups will not be able to avoid. However, it has been argued that it will be left up to individuals to decide whether or not to use the NHI to fund their healthcare, thus, access to the NHI is not restricted.
Regardless, the PLS said that “the payment frameworks are unclear” in the Bill.
Business Day PressReader article – Conflicting legal views on NHI leave MPs flummoxed (Open access)
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