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Minister’s powers in NHI ‘unconstitutional’

One of the many highly contentious issues of the National Health Insurance (NHI) Bill has been the overarching power to be vested in the Health Minister, “a political appointee, not an expert”, with the subject being the focus of numerous objections lodged against the Bill.

It was also highlighted in a webinar last week presented by medical sector legal expert Dr Debbie Pearmain, who discussed possible legal challenges to the Bill with her Institute of Risk Managers (IHRM) audience, reports The Citizen.

“Many sections in the Bill that provide overweening powers to the Minister could potentially be challenged as unconstitutional,” she said, citing, in particular, the term “this Act” in the definition section.

“The words include any directive or rule made or notice issued by the Minister and directive issued by the Fund,” she noted, meaning the Minister’s rules and directives would override any other laws, like the Medical Schemes Act, Public Procurement Act and the Health Professions Act.

“This is actually constitutionally incorrect because legislation always trumps regulations and regulations trump rules and directives. The Minister, therefore, cannot be given the power to effectively make law that trumps other legislation that has been passed by Parliament.”

According to the Bill, the Minister can veto the Fund’s purchasing decisions, its design of “healthcare service benefits” decisions, “and best practices etc. in terms of referral networks”.

“In other words, the Fund is totally tied down. It cannot operate under normal corporate governance because the Minister is basically a political appointee, not an expert, not an employee of a national executive, but a politician.

“This is a disaster waiting to happen,” Pearmain said.

 

AxessHealth article – Minister’s ‘overweening power’ in NHI Bill could be challenged (Open access)

 

See more from MedicalBrief archives:

 

Strong support for curbs to Health Minister’s powers in proposed NHI

 

Fifty reasons why the NHI will not work

 

Conflicting legal views present another hurdle in NHI Bill discussions

 

 

 

 

 

 

 

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