An assessment of 117 submissions to the public hearings on the contentious National Health Insurance Bill (NHI) – collated by the Parliamentary Monitoring Group and analysed by researchers from the SA Medical Research Council (SAMRC), Clinton Health Access Initiative and the universities of the Western Cape and Cape Town – found that most agreed that the Bill had serious constitutional problems.
In an analysis in Daily Maverick the researchers found that most of the submissions agreed that the Bill has serious legal problems. With the exception of the African National Congress – which argued that it was “satisfied that the Bill is constitutional, having witnessed the rigorous evaluation of constitutional implications of its underlying policy when that was processed through the Cabinet” – there was a high level of concern among respondents around the constitutionality of the Bill.
Just more than two-thirds (69%) of respondents were concerned, 27% were “silent” and 3% were not concerned.
The main concerns focused on possible corruption and the rights limited by a “single purchaser, single payer” model, the infringements with constitutional responsibility of provinces, the non-compliance with the “rule of law” principle, and the exclusion of care for migrants and refugees.
The ANC said “systems and processes that mitigate corruption are in place”. The Government Employees Medical Scheme (GEMS) felt confident that corruption would be kept in check because section 20(2)(e) of the Bill will establish an investigating unit within the national office of the Fund for the purpose of investigating fraud, corruption and other criminal activities. GEMS felt the narrative that state-owned enterprises are always run badly was not true and that GEMS was an example of a well-run state institution.
Most respondents said that corruption threatened NHI capacity to meet its stated objectives. The Collaboration for Health Systems Analysis and Innovation argued that “recent experience makes clear that the threat of corruption and misuse of health funds is a very real threat to the NHI and therefore to the health and well-being of everyone”.
The Democratic Alliance pointed out that “public healthcare institutions have suffered from a culture of corruption and incompetence, which has led to poor management, underfunding, understaffing, a loss of skilled staff and deteriorating infrastructure”.
Respondents highlighted five features that put the NHI at risk of corruption: the government’s lack of will and poor track record, lack of detail on prevention measures, increased opportunities for corruption, weak governance arrangements and inadequate safeguards.
Lack of political will
AfriForum commented that the “government has demonstrated a clear lack of will to put an end to the systemic corruption plaguing all governmental sectors… This rampant culture of corruption will simply bleed the potential NHI fund dry.”
Counselling Psychology South Africa pointed out that “while the president has indicated that NHI funds will be closely guarded, the Auditor-General’s findings into the Department of Health, among others, potentially suggest otherwise… the loss of funds [to corruption] also seems to be accompanied by a lack of accountability. Where qualified audits are issued little disciplinary, criminal investigation or sanction seems to follow.”
Section 27 and the Treatment Action Campaign said the Bill “lacks detail on the prevention of corruption [which] renders health more vulnerable to corruption”. The South African Dental Association said “the NHI will essentially become a state-owned entity with an annual budget that could top R450bn. These wide-ranging powers will create a ‘capturable’ governance structure. To date, no minister has been held to account for State Capture. What will be different here?”
The Institute of Race Relations thought the “NHI will bring increased fraud and corruption”. The DA was concerned that “over R200bn will be vulnerable to theft, lack of oversight and accountability”. The Western Cape government argued that vesting so much strategic purchasing power in one entity would make the NHI fund a target for corruption.
The Board of Healthcare Funders observed that “the Bill is weak on corporate governance… sound corporate governance is critical for preventing mismanagement of assets, corruption, inefficiency, illegality, unethical conduct, abuse of the fund’s resources and the collapse of the fund”.
The South African Human Rights Council argued that “the NHI in its current form is complex and offers myriad opportunities for corruption and looting, particularly in areas where contracts are entered into”.
Section 27 and Concentric Alliance were concerned about how existing and proposed governance systems would engage, saying that the Bill “concentrates too much power in the hands of the minister of health without providing the necessary oversight over the planned massive resources of the NHI”.
This concern was shared by UCT’s Faculty of Health Science, the People’s Health Movement, the Health Funders Association and the Helen Suzman Foundation.
Cosatu said “the biggest contentious issue around the NHI is the capability of the state to manage the NHI fund as well as the protection of the fund from unethical and unlawful practices in relation to the fund”. The DA, the FW de Klerk Foundation and the South African Medical Association (SAMA) agreed that, although they “endorse the envisaged corruption-fighting investigating unit [clause 20(2)e], it will be ineffective if the corruption develops within the NHI fund itself, as the unit will be unable to confront corruption from within”.
Mutual financial services company PPS and several other bodies felt that “without fixing the issue of corruption no system will be sustainable”, implying that the NHI should not be considered until corruption and other concerns are addressed.
There were broad recommendations for managing corruption. The South African Communist Party argued that “the NHI fund must have inbuilt mechanisms to fight corruption. This should include efforts to ensure greater transparency and accountability, including in the use of public funds and ensuring they are directed to those who need them most”.
Calls for stronger governance structures, better management, greater accountability and greater enforcement of controls over corruption were made by the Public Health Association of South Africa, the Health Funders Association, PPS, the South African Human Rights Commission, the Cancer Association of South Africa and others.
Greater clarity was requested. The Psychological Society of South Africa called for clarification on the role of provincial departments relative to the Health Ministry, mechanisms the minister would use for NHI expenditure control, and the Health Ombud’s role. Stellenbosch University sought clarity on the “fit and proper person” requirement for board members.
Accountability to Parliament, not minister
There were some specific recommendations. The South African Medical Research Council, UCT’s Faculty of Health, Icon Oncology and others proposed that the fund should be accountable to Parliament, not the minister, and the minister’s powers should be reduced. The Health Products Association of Southern Africa recommended that “Parliament should play an oversight role like it does with other Chapter 9 institutions”. The issues related to direct government oversight and the role of the Minister of Health are complex and have been examined elsewhere.
On the appointment of the board, Momentum medical scheme recommended using a judicial panel, while Business Unity South Africa advocated a parliamentary process, rather than ministerial discretion. The South African Committee of Health Sciences Deans proposed that “the person [board member] should not have a criminal record and should not have been convicted for fraud or corruption”.
Others suggested the inclusion of penalties to prevent abuse. The Hospital Association of South Africa felt the bill should “articulate sanctions that can be taken against board members for not ensuring the sustainability of the fund or engaging in fraudulent and corrupt activities”. The SA Nursing Council proposed that the committee should be empowered to award a cost order to prevent abuse.
With regard to the bill’s proposal regarding an anti-corruption unit for the NHI fund, the National Health Care Professionals Association and the Psychological Society of South Africa agreed that “the fund cannot investigate itself and must be subject to external scrutiny”.
Greater civil society representation was sought. Cosatu called for “broader representation of key stakeholders on the fund, including organised labour”. The People’s Health Movement held that participation was a key element of the right to health and argued for incorporation of the participatory structures of the National Health Act. Section 27, Concentric Alliance and the Khayelitsha and Klipfontein health forums argued for provision in the legislation for civil society representation in the NHI board, and other structures, to hold the government accountable.
The FW de Klerk Foundation suggested the Presidential Health Summit Compact recommendation on whistle-blowing be incorporated. This would ensure ease of reporting and consider political interference a corrupt activity.
The Public Service Accountability Monitor called for adherence to the Global Initiative for Fiscal Transparency’s principles of public participation, especially when considering access to information. It argued that “good governance and accountability are supported through increased levels of transparency, whereas corruption and maladministration thrive where access to information is restricted”.
The South African Medical Technology Industry Association and the Active Citizen’s Movement made similar calls. The Black Business Council recommended National Treasury’s provision of transversal contracts as a procurement model, as it was “a very transparent process — everyone knew who the players were, and the pricing structures”. This “balanced the need to prioritise black-owned companies and mitigate the risk of abuse”.
The Western Cape government argued for the decentralisation of the strategic purchaser role to the provinces, saying this role was critical to achieving universal access to quality healthcare and the purchasing of services to meet people’s needs and expectations was best done regionally.
Single purchaser and single payer model
The Bill designates the NHI fund as the “single purchaser and single payer” for healthcare services. The BHF (Board of Healthcare Funders) and others said this “makes it unlawful for people to purchase healthcare services that are covered by NHI except in very limited circumstances”. This limitation infringes the Constitution in three ways: two related to the Bill of Rights (Chapter 2) and one in relation to the constitutionally mandated responsibility of provinces and other tiers of government.
The Bill of Rights (Chapter 2) of the Constitution sets out the rights to which people in the country are entitled, and that the state is required to “respect, protect, promote and fulfil”. The Constitution does allow for these rights to be limited, but only if the grounds for limitation meet the “reasonable and justifiable” conditions set out in Limitation of Rights (Section 36) of the Constitution.
Right to access to healthcare services
Respondents argued that the single payer, single purchaser infringes on the right of everyone to have access to healthcare services as provided for in Section 27 of the Bill of Rights, that this limitation does not meet the “reasonable and justifiable” requirements as provided for in the Limitation of Rights (Section 36 of the Bill of Rights).
BHF argued that “if a person does not want to use an NHI-accredited healthcare provider to obtain services covered by NHI, he or she should have the option to obtain them elsewhere at his or her own expense”, and the limitation is, therefore “an infringement of their constitutional right of access to healthcare services, the right to dignity and the right to bodily and psychological integrity, which includes the right to security in and control over one’s body. It is also an infringement of the right to freedom of association”.
Mediclinic argued that Section 27 of the Bill of Rights imposes a “positive” obligation on the State to realise the right of access to healthcare within the State’s available resources and a negative obligation not to take steps that are retrogressive.
Given the high risk of the Bill not achieving its objectives, the State would then fail in its positive obligation, and if the Bill results in reduced access to healthcare services, the State would fail in its negative obligation as well.
They point to the ruling of the courts that it is an infringement of rights if a patient is limited to the public sector where required specialised care is only available in the private sector, and if people are prohibited from purchasing private medical insurance when the public health system is not able to provide adequate care within a reasonable time. The South African Medical Association (SAMA) agreed, saying “it would be unconstitutional to prevent patients accessing services they need, which are supposed to be available through NHI but are not because of resource constraints etc.”.
The DA said the Limitation of Rights (Section 36) of the Constitution requires any limitation to be reasonable and justifiable in an “open society”. The main characteristics of an open society is “individual freedom or autonomy”. This Bill does not merely limit these freedoms, but in many respects takes it away and therefore does not meet the Limitation of Rights requirements.
The Professional Provident Society said the “limitation of citizens to purchase private healthcare will be globally unprecedented and open to constitutional challenge. Most developing countries with universal health cover allow for a dual system where citizens can pay taxes towards healthcare and then opt to pay for private healthcare should they wish”.
Bonitas felt restricting healthcare purchasing choices for those who can afford them was unconstitutional.
Right to choose trade, occupation or profession
The single purchaser, single payer limitation also infringes the right of citizens to choose their trade, occupation or profession freely as provided for in Section 22 of the Bill of Rights. BHF argued that “healthcare providers who are not accredited by, and do not contract with the fund, cannot be paid for their services by anyone”.
Healthcare providers cannot force the fund to accredit them or contract with them. Providers will be unable to practise their profession without accreditation. This is clearly unreasonable and a violation of the Section 22 right to practice a profession. The Constitutional Court has held that Section 22 embraces both the right to choose a profession and the right to practice the chosen profession.
The DA noted that medical practitioners subjected to the decision-making powers of the minister, would see their freedom to practice their profession limited or redefined to a point where their only remaining choice was whether to practice as healthcare practitioners or not. This is the abolition of choice and not merely a limitation of freedom of choice. Even if regarded only as a limitation, it would exceed the boundaries of valid limitation in Section 36 of the Bill of Rights.
Most recommendations dealing with this constitutional infringement centred around removing the single purchaser, single payer limitation in the Bill.
The National Planning Commission did not support the prohibition on continued medical aid cover for services rendered by the NHI.
The National Health Laboratory Services recommend that “the NHI Fund should also allow for duplicative health insurance i.e. everyone should be compelled to contribute to mandatory pre-payment. However, those who want to buy a similar package through voluntary insurance should be able to do so”.
Discovery Health recommended that Section 6(0) of the Bill should be “amended in order to preserve the rights of citizens to purchase any health service benefits through a voluntary medical insurance scheme, any other private health insurance scheme or out of pocket payments, as the case may be”.
Among others, the Cancer Association of South Africa, the South African Medical Association, South African Private Practitioners Forum and South African Society of Physiotherapy all felt there should not be restrictions on the choice of provider, and private health insurance should be permitted to offer voluntary comprehensive medical cover.
Infringement of provincial responsibilities
The single purchaser/payer provision of the Bill infringes on the constitutionally mandated responsibility of provinces and other tiers of government.
The BHF said the provision conflicts with the constitutional duty of provinces “to ensure the progressive realisation of the right of access to healthcare services” as the provision does not permit the provinces to purchase healthcare services. The DA and the Western Cape government agreed that the Bill significantly reduced the scope of work and powers of the provinces as set out in the Constitution, the National Health Act and the PFMA.
The Dullah Omar Institute, MSD, Faculty of Science at UCT, South African Local Government Association, South African Medical Technology Industry Association, Stellenbosch University and Wits University expressed similar concerns and called for amendments to the Bill to allow for a continuation of the role of provinces and local governments.
Conflict with the rule of law
The language of the Bill creates uncertainty and that is contrary to the principle of the “rule of law”, a founding value of the Constitution. The BHF pointed out that the rule of law requires that “legislation must be stated in a clear, accessible and reasonably precise manner, and that there must be a rational relationship between a scheme adopted by a legislature and the achievement of a legitimate government purpose”.
It then proceeds to argue that “… the NHI Bill is poorly drafted. It contains several internal contradictions, shows a poor understanding of the legal principles of legislative drafting and a lack of insight into how language must be used when writing law.
“It conflates policy principles with legal principles, which causes uncertainty to creep in when reading the Bill. There is no recognition that one cannot write all policy into legislation. Some policy should remain just policy.
“This makes understanding the Bill difficult and confusing at times.”
MSD similarly argues that the “Rule of Law, enshrined in the Constitution, demands that the NHI Bill must be specific to create certainty and ensure accountability”.
Asylum seekers and migrants
Exclusion of asylum seekers and migrants from NHI benefits was considered unconstitutional and counterproductive. The DA cited Section 7 of the Bill of Rights, which states that the Bill of Rights applies to “all people in our country”, and Section 27, which allows for “everyone” to have the right to access healthcare (and does not exclude persons on the grounds of their status as asylum seekers).
The Scalabrini Centre pointed out that the Bill places South Africa at risk of violating the non-refoulement principle if asylum seekers are forced to leave because of failure to access healthcare.
The Independent Community Pharmacist Association and Lawyers for Human Rights said the health of the nation was influenced by the health of all within the country. The exclusion of any of SA inhabitants would be counterproductive, fuelling the spread of disease and adding to the burden of disease.
Among others, the Active Citizens Movement, Children’s Institute at the University of Cape Town, Rural Rehab of South Africa, South African Nursing Council, South African Committee of Medical Deans, and South African Human Rights Council called for the removal of these limitations, the adoption of a clear principle of non-discrimination in the application of NHI and the inclusion of asylum seekers, undocumented migrants, students and all children as beneficiaries.
The contestation evident in these presentations on constitutional rights and responsibilities has revealed several substantial shortcomings that have the potential to stop or seriously delay the path to implementation.
The PCH would need to deliberate on whether the concerns raised carry a high risk of constitutional challenge, which could result in a lengthy delay.
If the risk is deemed to be low, the PCH can proceed without addressing the substantive concerns. However, if the risks are deemed to be high, then PCH would have to consider amending the Bill to address or remove the constitutionally problematic components of the Bill to mitigate the risk of legal challenge.
Geetesh Solanki is Specialist Scientist at the Health Systems Research Unit, SA Medical Research Council (SAMRC); an Honorary Research Associate in the Health Economics Unit, University of Cape Town and Principal Consultant at NMG Consultants and Actuaries; Neil Myburgh is Professor in the Department of Community Dentistry, Faculty of Dentistry and WHO Collaborating Centre for Oral Health, UWC. Stephanie Wild is a postgraduate student enrolled for a MPhil in Public Law at the University of Cape Town; Judith Cornell is former Director of Institutional Development and Planning at the Nelson Mandela School of Public Governance, University of Cape Town; Vishal Brijlal is a Senior Director at the Clinton Health Access Initiative.
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