The state cannot force people to register as users of the National Health Insurance (NHI) fund, which raises the question of the rights of non-users, writes legal expert Neil Kirby, arguing that this could potentially bring the Bill and eventual scheme into a collision course with the Constitution.
In a News24 analysis, Kirby writes:
Currently, two provisions appear to define the role of medical schemes under NHI in the Bill. The first, clause 33, states that “(o)nce National Health Insurance has been fully implemented as determined by the Minister (of Health) in the Government Gazette, medical schemes may only offer complementary cover to services not reimbursable by the Fund”.
Very little is given away about the scope and ambit of clause 33.
However, the term “complementary cover” is defined in clause 1 of the Bill as “third-party payment for personal healthcare service benefits not reimbursed by the Fund, including any top-up cover offered by medical schemes registered in terms of the Medical Schemes Act or any other voluntary private health insurance fund”.
The second clause at issue is clause 6(o), which provides that users… have a right to “purchase healthcare services not covered by the Fund through a complementary voluntary medical insurance scheme registered in terms of the Medical Schemes Act…”.
What this means for medical schemes
On the face of the two clauses, medical schemes will be limited to providing benefits not otherwise provided by the Fund. The reasons for such a limitation are not apparent but the question – why medical schemes should be limited in such a manner – deserves an answer.
The two clauses above employ different language to arguably the same end: a limitation on medical schemes to provide certain benefits. In clause 33, medical schemes may not provide benefits otherwise “reimbursable by the Fund”.
The meaning of reimbursable is not clear from the Bill. However, taken at its ordinary meaning, and within the context of the scheme of the Bill, that term must mean a liability to be discharged by the Fund, on behalf of a user, in respect of the costs of the provision of a healthcare service by an accredited provider to the user concerned. Such a position is supported by the overall intention of the Bill in clause 2(a):
“The purpose of this Act is to establish and maintain a National Health Insurance Fund … funded through mandatory prepayment that aims to achieve … affordable universal access to quality healthcare services by: serving as a single purchaser and single payer…to ensure the equitable and fair distribution and use of healthcare services.”
Therefore, the Bill intends for the Fund to do the heavy lifting: identify the healthcare providers to deliver the needed services and then pay them for the services.
Such a scheme appears to be a straightforward tripartite relationship among the Fund, its users and healthcare providers. However, the Bill, while defining what a mandatory prepayment is, is silent on any legal obligation for a person to register as a user of the Fund.
To become eligible to receive healthcare services paid for by the Fund, one is required to register as a user of the Fund. This makes sense as the Fund will want to know for whom it is liable for purposes of reimbursing the services obtained.
Such a relationship is one where a user is entitled to accept a person is not liable for the costs of the healthcare received as that liability, through registration, now lies with the Fund.
On that basis, the Fund will define the benefits for which it is liable and the costs for which it will reimburse providers.
But what of those people, otherwise eligible to register as users of the Fund, who choose not to do so? They would still be entitled to access healthcare services in accordance with their rights under section 27 of the Constitution.
In so far as non-users are concerned, where a non-user seeks a healthcare service, the costs of that service are not, in the hands of that non-user, reimbursable by the Fund – the Fund has no liability to them as they have not registered to qualify for the liability and subsequent reimbursement for the costs.
Accordingly, in the hands of a non-user, the costs of a healthcare service that may otherwise be reimbursable by the Fund, are not.
If one accepts that position, then there can be no logical (or legal) bar to a non-user seeking liability for the payment of his/her healthcare costs from another source, including a medical scheme.
On that basis, the Bill contemplates two categories of persons, for purposes of a revised or rejigged healthcare delivery and access system: users and non-users.
Users understand they are entitled to expect the Fund to fulfil the liability for the costs of the services they consume and, equally, non-users understand their disqualification from such an expectation.
Why then, if one accepts the position above, with reference to the ordinary principles of contractual liabilities, would a non-user not be able to access benefits, of whatsoever nature, from a medical scheme? More particularly, where, as a result of them being non-users, the healthcare services they seek and obtain are not reimbursable by the Fund?
The answer must be that a non-user is entitled to obtain access to healthcare services by any lawful and reasonable source available to him/her, including via a medical scheme.
What then of clause 6(o)?
Clause 6(o) does not use the word “reimbursable” but rather “not covered by the Fund” (our emphasis).
If one accepts that the overall scheme of the Fund, as is stated above, is one of accepting the liability for the costs of healthcare services provided by accredited healthcare providers to registered users, then one must accept that “covered” means the benefits for which the Fund accepts liability to users.
Therefore, clause 6(o) cannot be interpreted as being broader than what is intended by the scheme of the intended NHI with reference to the principles of how liability is intended to operate under that scheme.
One must accept that the state cannot force a person to register as a user of the Fund.
To do so would arguably expose such an obligation to constitutional challenge on the basis of a right to freedom of association but, equally, the state cannot enact legislation that unfairly or unreasonably limits a person’s rights to access healthcare services where there is a viable and available alternative to do so.
Such a situation would, no doubt, bring the Bill and eventual NHI scheme into a collision course with the Constitution.
Certainly, where a user is registered for purposes of receiving healthcare benefits from the Fund, one must accept that duplicating that cover by allowing a user to seek benefits from a medical scheme is illogical and largely impractical.
A non-user is not faced with such a situation.
A non-user has no expectation that the Fund will defray his/her healthcare-related liabilities. Accordingly, a non-user should be entitled to seek an alternative source for that liability – and where better than a medical scheme?
The position that is posited above is, however, premised on at least three potential assumptions –
• non-users are prepared to pay for medical scheme premiums, notwithstanding a statutory requirement for a mandatory prepayment to the Fund;
• medical schemes are able to enhance their value proposition to beneficiaries by, potentially, making benefits more attractive, more accessible and understandable, and offering products that are cost-effective but relevant to the consumers who use and need them, for example, a low-cost benefit option or a similarly novel product and/or service; and
• there is a willingness among the population not to abandon medical scheme membership and not, en masse, emigrate to the Fund to the financial detriment of medical schemes, which are left with a scarcity of members and thus compromised financial viability.
While the Bill’s overall intentions relating to medical schemes and their future under an NHI is unclear, there may still be a role for them if one accepts that there may be a cohort of non-users of the Fund choosing to seek assistance for defraying liability in respect of the costs of healthcare services from a person other than the Fund.
Neil Kirby, director and head: Healthcare & Life Sciences, Werksmans Attorneys.
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