The SA Medical Association (SAMA) has launched legal proceedings against the National Health Insurance Act, in what it says is the most significant constitutional challenge to the "dangerously flawed" legislation and scheme thus far.
Sama chair Dr Mvuyisi Mzukwa said if implemented, the NHI would “collapse” the healthcare system, and that troubling fine print in the Act “violates constitutional rights of patients and doctors”.
“The organisation is challenging multiple provisions that will severely prejudice both doctors and their patients, raising fundamental concerns about access to care, administrative barriers, financial feasibility, the impact on the public health sector and the long-term sustainability of the NHI system,” he told BusinessLIVE.
SAMA represents about 12 000 doctors.
Mzukwa said it would take years for the NHI to sort out the administration of registering South Africans, and this “could do more harm than good”.
SAMA’s legal filing highlights nine conflicting definitions of NHI benefits within the Act itself, he added. “SA is embarking on a radical overhaul of its healthcare system without even knowing what it will offer patients.”
The organisation launched the application almost a year after President Cyril Ramaphosa signed NHI into law, with SAMA legal head William Oosthuizen, saying the delay was because they needed to consult experts and file a comprehensive constitutional challenge.
He said theirs was different from the ongoing challenge in court launched by the SA Private Practitioners’ Forum (SAPPF) and the Board of Healthcare Funders (BHF), and it was “probably the most comprehensive out of all of those that have been filed thus far”.
Urgency
Mzuka said the urgency of this legal challenge “cannot be overstated”, and that their legal action was driven by the “real-world implications” of the NHI Act, particularly the bureaucratic and structural failures it could introduce.
“The average South African will be required to register as an NHI user before they can receive treatment … a process that could take years to complete nationwide. Registration can only occur at accredited primary healthcare providers. Patients will then be forced to seek care at their registered facility first, even if that facility is overloaded or incapable of providing appropriate treatment,” he said.
“There is no clarity on how patient transfers will be managed in the system. Ironically enough, restrictions to one’s area of registration undermine the very principle of universal access to healthcare coverage.”
Other key issues SAMA is raising in its legal challenge include:
• The handling of complaints about poor service delivery by a single, centralised investigative unit within the NHI fund’s national office – which SAME views as “wholly inadequate” for the effective resolution of patient grievances;
• A lack of clarity in the Act about which services will be covered;
• The unclear system for the procurement of medical supplies;
• The consequences the Act will have for healthcare professionals, who will be required to meet “impossible accreditation standards” and work well beyond their normal capacity for less income; and
• A lack of provisions in the Act to insure private sector doctors against medico-legal claims, despite these doctors operating within NHI protocols.
“(The NHI Act) represents a major step backwards… Key decision-making powers will be centralised at the national office or national level, with no assessment of whether national government structures have the capacity to manage this enormous responsibility,” Mzukwa said.
“Our legal challenge represents the necessary step after exhausting all available channels for constructive input over more than a decade.”
Business Tech reports that Mzuka said many professionals are already stretched beyond their limits, and the Act introduces “impossible accreditation standards” that can only be met after registration with the NHI.
This causes a paradox that makes compliance unattainable for workers who are already under severe strain.
Mzukwa said its analysis showed that a surgeon already works at about 158% capacity in South Africa. With the NHI, that same surgeon would have to work at 366% capacity, for half the income.
“This scenario is unrealistic and unsustainable,” he said.
The Act also does not protect doctors against medicolegal claims, even though they are expected to operate within NHI protocols.
SAMA argues that medical aid members and beneficiaries of the Road Accident Fund and COIDA will all lose their benefits as a result, exacerbating the troubles that already exist here.
“These will be replaced by an ill-defined, unworkable and unaffordable NHI system,” Mzukwa said. “This represented a major step back in healthcare access.
Daily Maverick reports that in February, SAMA, with the Progressive Health Forum and the SA Private Practitioners Forum, proffered a joint proposal to reform the healthcare system as an NHI alternative. The three organisations, under the umbrella of the Universal Healthcare Access Coalition (Uhac), said their proposal provided “pragmatic and equitable solutions”.
The Uhac report was sent to Ramaphosa for review.
Foster Mohale, National Department of Health spokesperson, said SAMA’s decision to litigate was noted, and that its view that NHI was unworkable and unaffordable was “not factual”. He said the organisation did not represent the “views of the majority of South Africans”, who depended on an underfunded public health system.
Business Tech – NHI facing biggest legal challenge so far
See more from MedicalBrief archives:
Hospitals group latest to launch NHI legal challenge
Medical schemes and union kickstart NHI legal challenges