Members of the National Assembly’s Portfolio Committee on Health have received contradictory legal opinions on whether the National Health Insurance Bill will pass constitutional muster.
On 15 March, representatives from Parliament’s legal services unit and the Office of the State Law Adviser briefed MPs on the NHI Bill, which is being processed by Parliament.
Parliament’s legal services warned that several of the bill’s provisions, including those on medical schemes, could give rise to a constitutional challenge. But the Office of the State Law Adviser said the bill was not in conflict with the Constitution.
NHI will make the state the sole purchaser of healthcare for everyone in South Africa. Anyone who wants to access healthcare will have to register with the NHI Fund and follow delineated referral pathways to obtain treatment. This will effectively bring private and public healthcare under the control of the state, which will result in health insurance and medical schemes largely falling away, except in specific circumstances.
Role of medical schemes
Clause 6(o) of the bill states that a user of NHI may, in certain circumstances, purchase healthcare services that are not covered by the NHI Fund through a complementary medical scheme, private health insurance scheme, or via out-of-pocket payments.
In terms of clause 8(2), a person or user must pay for healthcare services rendered directly, through a voluntary medical insurance scheme or through any other private insurance scheme, if that person or user:
- Is not entitled to health care services purchased by the NHI Fund in terms of the NHI Act;
- Fails to comply with the referral pathways prescribed by a healthcare service provider or health establishment;
- Seeks services that are not deemed medically necessary by the Benefits Advisory Committee; or
- Seeks treatment that is not included in the formulary.
One of the most contentious provisions of the bill is clause 33, which provides for the role of medical schemes as follows:
“Once NHI has been fully implemented as determined by the Minister [of Health] through regulation in the [Government] Gazette, medical schemes may only offer complementary cover to services not reimbursable by the [NHI] Fund.”
Parliament’s legal services said the bill does not provide much detail on how medical schemes will operate once the NHI Bill is enacted.
Furthermore, it is not clear how current scheme members will access healthcare services during the phased implementation of the bill, which, it said, creates legal uncertainty.
It is also not clear whether members will have to pay the mandatory prepayment and still pay their medical scheme contributions while NHI is not fully implemented, parliamentary legal adviser Sueanne Isaac told MPs.
She is also of the view that, because the full benefits available under NHI have not yet been determined, it is unclear to what extent this will affect the rights of those receiving treatment through medical schemes.
Isaac said the role of schemes will be fundamentally altered once NHI is fully implemented. In future, schemes will offer only complementary services not reimbursable by the NHI Fund. Some have argued that this violates the right to access healthcare and freedom of association.
“The Constitution requires the state must take reasonable legislative and other measures, within its available resources, to achieve the progression realisation of rights, including in respect of the access to healthcare. If medical scheme users suffer a reduction in access to health care as a result of the full implementation of the NHI, this will give rise to a constitutional challenge based on a violation of section 27(1) of the Constitution,” Isaac said.
Other problem areas
The bill’s provisions dealing with medical schemes were not the only issue raised by Parliament’s legal services.
Isaac said the proposal to exempt all transactions in terms of the NHI Bill from the Competition Act was not in line with the Constitution’s provisions for competitive and cost-effective procurement. Only the NHI Fund should be excluded from the Act, she said.
Other areas of concern in the bill are:
- The proposed reduction of the role of provincial health departments;
- The stringent lines of referral that need to be followed without any flexibility for those who may not be able to follow them; and
- The proposal to strip asylum-seekers of their access to primary healthcare, reproductive health services and antiretroviral therapy.
But, following her extensive presentation, deputy chief state law adviser Ayesha Johaar said her office was satisfied that none of the provisions of the NHI Bill unlawfully infringe on any fundamental rights in the Constitution.
The Bill of Rights is the cornerstone of South Africa’s democracy. The rights contained in the Bill of Rights are subject to the limitations contained in or referred to in Section 36 of the Constitution, or elsewhere in the Bill of Rights. Freedom of choice is a right. This right has to be allowed in terms of the choice of a health provider. We do not have sufficient doctors that can enforce such a right, nor do the doctors want the capitation model to force them to only take patients from the state with no right to choose an area or practice standards of their own. It does not work in the UK and it simply will not work here.