Monday, 15 April, 2024
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Litigation threats as NHI Bill passed by parliamentary committee

Threats of legal action have predictably followed the adoption of the National Health Insurance (NHI) Bill – with only slight amendments – by parliamentary committee members despite a string of concerns raised by various stakeholders, and conflicting legal opinions still unresolved.

The South African Medical Association (Sama) reacted strongly, saying it rejected the Bill in its current form, and the Solidarity trade union says it is considering a constitutional challenge to the draft legislation whch was given the thumbs up by the Portfolio Committee on Health.

The Bill has been under consideration for four years, with concerns being raised by Parliament’s legal adviser and opposition parties and input received from a multitide stakeholders, from private healthcare providers to patient advocacy groups.

The amended version was adopted by the committee on Wednesday, with six ANC MPs and the chair voting in favour versus two DA MPs and one MP each from the Freedom Front Plus (FF+) and EFF voting against it. It will now go to the National Assembly where it is expected to be passed, before being sent to the National Council of Provinces for concurrence, a process likely to take at least a year, reports BusinessLIVE.

While the government intends the fund to be based on social solidarity principles, with the rich and healthy subsidising the poor and the sick, it has yet to indicate how it will be financed.

Discovery Health CEO Ryan Noach said he was disappointed that the amended version of the Bill varied little from the original.

Discovery Health does not support the single funder model proposed by the document, nor its restriction on medical schemes to only offer cover for services not included under NHI.

“The committee elected not to take the opportunity to make amendments to the Bill that would enhance both the feasibility and effectiveness of the NHI Fund, despite detailed and constructive inputs from multiple stakeholders,” he said.

“As a result, it is highly likely it will be challenged through various legal avenues, including probably being contested on constitutional grounds.” The financing of NHI remained unclear as there had been no input from the National Treasury, he added.


“It is absolutely critical to understand the affordability and economic strategy for supporting the Bill’s proposals, as well as the financial systems and controls required to ensure effective oversight of the monies in the fund.”

Solidarity said it would take the government to court if the Bill was accepted. “In the run-up to next year’s election, and to canvass cheap votes, the government insists on pushing through this law while being fully aware its own system cannot support it,” said Solidarity’s medical network co-ordinator Peirru Marx.

The trade union had successfully approached the court in June 2022 when sections 36 to 40 of this legislation were declared unconstitutional, and had also participated in the public processes after the initial publication of the Bill, by submitting comments as well as making presentations in Parliament.

“They are misleading South Africans by saying the NHI will promote healthcare in South Africa while concealing the fact that healthcare is readily available, but that the officials managing these essential services do not have the political will to do what is necessary to improve the quality of services,” said Marx, network co-ordinator of the medical industry at Solidarity.

He said the state should rather repair the existing system and apply better management in state institutions instead of hijacking the private sector.

“Implementing the NHI will result in a disaster … the government is not to be trusted, and its history of abuse of power, mismanagement and corruption will compromise the quality of medical care. We are also worried about the number of healthcare practitioners who have indicated they will not work in these circumstances, and there is concern about the complete collapse of the free market in this sector as a result of the NHI,” Marx argued.

Sama, meanwhile, says the Bill was developed with disregard to the legitimate concerns and recommendations of experts, particularly on critical issues like the introduction of contracting units for primary healthcare (CUPs), benefits packages and reimbursement models, among others.

Sama spokesperson Dr Mvuyisi Mzukwa said there were significant concerns related to the provision of healthcare services if the Bill was taken forward, reports News24.

He said trust in the government’s ability to efficiently manage the more than R500bn budget was severely eroded, and had been highlighted by the mismanagement of Covid-19 funds.

“Misappropriation of funds in various state-owned entities casts doubt on the state’s ability to handle the budgets responsibly. The public, alongside healthcare stakeholders, cannot simply entrust their lives to a government with an established history of financial

Sama believed “a robust approach to strengthening health systems” was indispensable and would rectify existing deficiencies and overcome the challenges posed by the NHI.

Similarly, the KwaZulu-Natal Doctors Healthcare Coalition (KZNDHC) is concerned about entrusting the lives and wellbeing of citizens to a government with a history of financial mismanagement, it said on yesterday, according to a TimesLIVE report.

The organisation voiced its concerns on the National Health Insurance (NHI) Bill, which was approved by the parliamentary portfolio committee on health on Friday before it goes to the National Assembly.

It said the failures of the current public health systems cannot be ignored.

KZNDHC CEO Dr Neven Govender said the independent practitioners' association, representing 1,200 doctors in the private sector, believes that any reform, including the implementation of the NHI, must address the fundamental issues that “plague our public health system.

“These issues include a lack of sufficient resources, infrastructure deficiencies and workforce shortages. The failure to adequately address these challenges has resulted in compromised healthcare services and hindered access to quality care for many South Africans.

“We cannot ignore the issues of abuse and mismanagement of funds that have plagued our public health system. Instances of financial misconduct and misappropriation of funds within various state-owned entities have eroded trust in the government's ability to efficiently manage healthcare budgets.

“The NHI Bill, in its current form, does not provide sufficient reassurances or mechanisms to address these concerns adequately. As representatives of the healthcare community, we believe it is essential to prioritise strengthening our public health system, ensuring transparency, accountability, and responsible management of resources, before implementing reforms such as the NHI,” he said.

Govender said one of the main issues raised was the development of the Bill without due consideration for the legitimate concerns and recommendations of experts, particularly regarding the introduction of contracting units for primary healthcare (CUPs).

“We believe that the implementation of CUPs may have implications for the delivery of primary healthcare services, including the quality, accessibility and continuity of care. It is vital that the voices of professionals and stakeholders in the healthcare industry are heard and incorporated into the development of the bill, particularly when it comes to the establishment and functioning of CUPs.”

He urged stakeholders to critically assess the proposed reforms, engage in open dialogue and collaborate to develop a healthcare system that “is truly comprehensive, equitable and sustainable for all South Africans.

“The KZNDHC will continue to closely monitor the developments around the bill, advocating for the urgent rectification of the existing failures in the public health system. We remain committed to working together with policymakers, experts and stakeholders to ensure the provision of high-quality healthcare services that our citizens deserve.”

However, a Fin24 reports says lobby groups, particularly Business Unity SA (Busa), remain hopeful that there will still be scope for amendments to the Bill as it proceeds through Parliament. Key among its concerns is the future of medical aid schemes.

Section 33 of the Bill says:

"Once National Health Insurance has been fully implemented as determined by the Minister through regulations in the Gazette, medical schemes may only offer complementary cover to services not reimbursable by the Fund."

It is envisaged that the NHI will be phased in over several years, offering an expanding bundle of services as time goes on. As the range of services expands, the services that medical aid schemes will be allowed to fund will shrink. By the time it is fully phased in the schemes will only be allowed to offer cover only for "complementary" services.

Busa has raised concerns that this will dramatically shrink the pool of medical aid contributors, who will not want to pay twice for medical insurance. It fears the consequence would be to shrink the private sector industry, which will no longer be viable.

There are also unresolved legal issues with the Bill. In March, the committee received two conflicting legal opinions. The first from the State Law Adviser said that the Bill did not infringe on constitutional rights. The second, by Parliament's own legal services, flagged several areas in which the Bill could face legal challenges.

Among these was Section 33, which would fundamentally alter the role of medical schemes. If medical scheme users were to experience reduced access to healthcare, this would violate their right to health as provided for in the Constitution.

South African Medical Association Trade Union (Samatu) spokesperson Bokang Motlhaga said it was “not ready to comment now”.


BusinessLIVE article – Litigation threats fly as soon as MPs adopt NHI Bill (Restricted access)


News24 article – SAMA rejects NHI Bill in its current form (Restricted access)


Fin24 NHI reaches landmark as Parliament committee gives its approval


Solidarity article – NHI: Legal action to follow (Open access)


TimesLIVE KZN private doctors concerned about NHI Bill given government's history of financial mismanagement


See more from MedicalBrief archives:


Opposition parties reject NHI Bill in current form


Fifty reasons why the NHI will not work


No funding model yet, but NHI gets big chunk of health budget





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