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First NHI legal challenge kicks off today as Ramaphosa prepares to sign Bill

With President Cyril Ramaphosa poised to sign the contentious National Health Insurance Bill into law before the upcoming May elections, the first of several expected legal challenges kicks off in the Gauteng High Court (Pretoria) today, writes MedicalBrief.

Beeld, in a report on the Legalbrief site, says Solidarity wants the court to review five decisions taken by the authorities to pave the way for the NHI. The first decision under review is the decision by the DG of Health to advertise 44 vacant posts for technical specialists. Deputy DG Dr Nicholas Crisp earlier indicated that the posts were authorised by the National Treasury. However, Solidarity argues that the creation of the vacancies was in itself unlawful and unconstitutional. The NHI Bill that would create the NHI has not been adopted by then. Solidarity argues that the five decisions under review shows that the government took several steps to operationalise a system that did not exist on paper.

In 2016, a decision was taken to create an ‘NHI department’ within the Department of Health. In October 2020, the department created a new Deputy DG position for the NHI. Five senior positions within the Department of Health were scrapped to make provision for a new structure. In opposing the review application, DG Sandile Buthelezi says in his affidavit the White Paper on the NHI was already issued in June 2017. The White Paper envisaged the implementation of the NHI in phases. The respondents say that a setting aside of the decisions under review would have a far-reaching effect on the foundational work and preparations for the NHI required once the NHI legislation comes into effect.

More such suits are sure to be lodged in coming weeks as organised business has urged President Cyril Ramaphosa not to sign the National Health Insurance (NHI) Bill, threatening legal action should it become law, the passing of the controversial document being widely viewed by analysts and critics as an election gimmick by the ruling party.

On the sidelines of the government’s annual strategy meeting last week, Minister in the Presidency Khumbudzo Ntshavheni said Ramaphosa would probably sign the Bill into law before the crucial forthcoming elections (May), where the NHI legislation is likely to feature strongly.

At the ANC’s 8 January Statement, Ramaphosa, as party president, went off script to underscore the NHI Bill would be implemented, “whether they like it or not”.

While no one opposes equal access to quality universal healthcare – only 16% of South Africans can afford private medical insurance – the Bill has also been sharply criticised by doctors, health facility providers and health insurance companies, reports Daily Maverick.

Such critique includes dilapidated public clinics and hospitals that do not meet basic cleanliness and other standards, centralising the procurement of medicine, health products and equipment through a government-administered fund – the potential for corruption has been flagged – limiting patients’ choice by prescribing the healthcare access route and, ultimately, ending the role of medical aid schemes once the Minister decides the NHI has been fully implemented.

Business Unity SA (Busa) CEO Cas Coovadia said that while legal action would be the organisation’s last resort to prevent the Bill becoming law, the option has not been ruled out, reports Business Day.

“What the country needs is an NHI underpinned by the Constitution and which is affordable and implementable. This Bill does not meet these criteria and is not ready to be signed into law,” he said.

“Legal action is an option we will consider, because any attempt to implement the legislation in its current form will have significantly negative consequences for healthcare in our country, across society, as well as further reducing investor confidence.

“We hope the President considers the long-term impact and risks of assenting to a Bill that so clearly flouts the Constitution,” he said, adding that the organisation had submitted a detailed formal petition to Ramaphosa in late November.

The Bill has been in Ramaphosa’s in-tray since it was passed on 6 December in the National Council of Provinces, but it was delayed for a week after Busa and Business for South Africa’s (B4SA’s) approach to the Presidency.

After that vote, the DA also said it would ask Ramaphosa not to sign the Bill into law and was briefing lawyers on potential legal challenges in the Constitutional Court.

The Constitution, in section 84(2), allows the President to return legislation to Parliament if there are concerns about constitutionality or procedural issues. He can also submit the legislation to the Constitutional Court for a decision on whether the legislation is compatible with the Constitution.

Chair of the B4SA steering committee Martin Kingston said South Africa was “in pre-election mode and adoption of the Bill is a cornerstone of the government’s policy platform and its election campaign”.

“However, the weaknesses and the material negative implications …in its current form will have devastating consequences for the country and her people for generations to come. There is a significant obligation on the President to ensure the Bill passes constitutional muster.”

Busa and B4SA said the single fund model (where the government will buy and pay for all healthcare services for everyone) introduces “significant concentration risk and adversely impacts people’s ability to seek care in the private sector”.

Section 33 was particularly concerning, they said, and unconstitutional, as it gives the Health Minister unfettered freedom to determine what services medical aid schemes would be allowed to offer. “This power is unnecessary for achieving the policy objectives of the NHI.”

They said this was damaging to the private health sector as a whole and there was no rational basis for this approach.

Busa cited several grounds where the Bill falls short of procedural and constitutional requirements, among them an inadequate socio-economic impact process to determine its effect on the broader economy.

Added concerns were that public participation inputs were not properly considered and that the many suggestions from business and medical aid schemes were ignored.

A collaborative Nedlac process to address high-level issues around the NHI between government, business and labour also appears to have withered on the vine, reports Moneyweb.

Funding

One of the key objections to the NHI is its estimated R859bn cost (for prescribed minimum benefits) and where the government plans to find this money, bearing in mind the current budget for healthcare is just R233bn.

Discovery CEO Adrian Gore warned that the NHI proposals as they stand mean medical aid members will be required to pay 31% more tax and receive 69% less benefits in return.

The NHI also runs afoul of the Constitution when it comes to accessing healthcare and appealing treatment denied by the NHI, as these could potentially hinder or violate constitutional rights to healthcare services.

Other offending clauses are sections 11 and 26, which deal with the purchase of healthcare services and the determination of prices for those services, guided by a committee of up to 24 people.

These provisions “are unsustainable and inconsistent with the principles of value-based care and strategic purchasing, which is the global trend for sustainable healthcare contracting that is patient centred”, said Busa.

“They focus on price in an unsophisticated manner which contradicts the Constitution’s criteria for lawful procurement.”

Roll-out

The roll-out of the NHI, covered under Section 57 of the Bill, talks of a phased and progressive implementation of the scheme based on available resources, and split into two phases.

The first five years would focus on the healthcare needs of the vulnerable, with the second phase lasting four years and focused on strengthening existing systems and contracting healthcare services from private providers.

Busa said this roll-out needed to be linked to milestones that are workable and relevant to South Africans having reasonable access to quality healthcare services, rather than dates that are arbitrary and unrealistic, and already outdated.

Control

Medical aid schemes view Section 33 of the Bill as the key threat to their longevity.

The Bill states: “Once National Health Insurance has been fully implemented as determined by the Minister through regulations in the (Government) Gazette, medical schemes may only offer complementary cover to services not reimbursable by the Fund.”

That means they may not provide services already covered by the NHI.

There are also contradictions between the NHI and various other statutes, including the Competition Act and the Protection of Personal Information Act, as well as contradictions between different clauses within the Bill itself.

One appears to remove, with immediate effect, the health functions of the provinces, impacting funding of about R196bn.

Gore told Moneyweb that when the NHI starts taking effect a decade from now, a dramatic drop in the quality of healthcare in SA should be expected, with an increasing burden being thrust on to the taxpayers’ shoulders.

Strong support

The government has stood firm in its support for the Bill, as indicated by Health Minister Joe Phaahla immediately after the NCOP vote in December. Getting the Bill passed was one of Phaahla’s assessment indicators in his performance agreement with Ramaphosa.

The document has, however, been steeped in much speculation, most recently that the president may sign only some sections of it into law.

Busa and B4SA are opposed to piecemeal implementation, which would not provide clarity and certainty, would “hamper collaboration”, undermine healthcare sector investment and “impede initiatives” towards universal health coverage, they said.

Meanwhile, Western Cape Health MEC Nomafrench Mbombo told News24 that the provincial government did not support the Bill in its current form and would challenge it in court “if necessary”.

“We support the objectives of UHC and the development of a mechanism to reallocate resources from both public and private sectors to equitably address the total population's health needs without there being financial hardship at the point of care," she said.

However, she said she was concerned with how the NHI would affect the health system.

“Specifically, in relation to the centralisation of power, governance and accountability of the NHI Fund, the role of provinces, legal concerns and the potential for the NHI to prevent the creation of a unified health system that is strategically aligned,” she said.

In its current form, the Bill also lacked clarity “on the role of the provincial Health Departments, raising concerns about how health services could be effectively co-ordinated”.

The Western Cape Government had made a last-ditch appeal to Ramaphosa in December to stop the Bill from being signed into law, but had received no response.

“Noting this, as well as the fact the President delivered a speech on 8 January saying the Bill will go ahead, we have sent an additional letter, urging him to send it back to the National Assembly so that both the general and constitutional concerns are attended to," the MEC said.

She said the Western Cape Government reserved its right to approach a court to “challenge any substance, processes and decisions relating to the NHI Bill”.

 

Daily Maverick article – Business organisations call on Ramaphosa to return NHI Bill to Parliament (Open access)

Beeld 1ste van vele hofsake teen NGV begin

Moneyweb article – Kick the NHI Bill back, it’s unconstitutional – Busa to Ramaphosa (Open access)

 

Business Day PressReader article – Big business threatens NHI legal action (Open access)

 

News24 article – Western Cape Health MEC considering court action over NHI Bill ‘if necessary’ (Open access)

 

See more from MedicalBrief archives:

 

Institute of Race Relations: Ramaphosa deceives SA in claiming NHI will cure healthcare crisis

 

One step closer for NHI as NCOP committee adopts Bill, unchanged

 

Litigation threats as NHI Bill passed by parliamentary committee

 

 

 

 

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