One of the many problems with the National Health Insurance (NHI) Bill is that it does not clearly state the healthcare benefits users will be entitled to receive, or, to put it negatively, the benefits they can’t expect to receive.
The lack of clarity on what will be included in the NHI benefits package has been raised repeatedly by stakeholders and commentators since the bill was introduced in Parliament in 2019.
It is likely that the bill is deliberately vague on the benefits because the type and level of the benefits provided will directly impact the cost of NHI. The Department of Health has said it wants to cap expenditure on NHI-funded health care at 8.5% of GDP. It has also said there is currently “more than enough” money in the healthcare system to fund NHI. If the benefits package is spelled out, it may become clear that NHI is unaffordable, or, if the package is scaled down to contain costs, that NHI will not provide the level of health care many are being led to believe it will.
In July 2022, the South African Medical Journal (SAMJ) published an article that provided a survey of public submissions on the NHI Bill to the National Assembly’s Portfolio Committee on Health. On the issue of the affordability of benefits, the article referred to the following submissions:
- The Health Funders Association stated that “given budgetary constraints, the NHI is likely to cover a much narrower range of services than what is currently provided by medical schemes”.
- The Pharmaceutical Task Group said that rationing medicine benefits to a level lower than currently available would compromise patient care and health outcomes.
- The University of the Witwatersrand pointed to the findings of the Ministerial Task Team on Social Health Insurance (2005), which concluded that “even with a minimum benefit, costed at the lowest level feasible, it appears not to be affordable in the medium term. Overall health expenditure would rise to exceed 11.3% of GDP.”
Wide-open definitions
The NHI Bill “employs relatively vague language” to describe the health services with which the bill is concerned, say Neil Kirby, the head of health care and life sciences at Werksmans, and Helen Michael, a director of the same law firm.
The bill states the Minister of Health must establish and appoint a Benefits Advisory Committee (BAC) that must determine the “health service benefits” that will be provided by the NHI Fund.
The minister also appoints the board of the NHI Fund.
The NHI Fund, in consultation with the minister, must purchase the healthcare services determined by the BAC.
Clause 1 of the bill defines a “healthcare service” as:
- “Healthcare services”, including reproductive health care and emergency medical treatment;
- Basic nutrition and “basic healthcare services” for children;
- Medical treatment for people who are incarcerated; and
- Where applicable, provincial, district and municipal “healthcare services”.
The clause defines “basic healthcare services” as “services provided by healthcare service providers which are essential for maintaining good health and preventing serious health problems, including preventative services, primary health care, emergency medical services, diagnostic services, treatment services and rehabilitation services”.
Kirby and Michael say this definition provides little clarity of precisely what benefits users will be entitled to receive from the NHI Fund.
Considering that clause 4(1) states the BAC determines “healthcare services”, they say it is open to question whether the committee is “legally competent” to determine the content of “basic healthcare services”. Although the term “basic healthcare service” is used in the definition of “healthcare service”, that term is circumscribed by the reference to section 28(1)(c) of the Constitution: “Every child has the right to basic nutrition, shelter, basic healthcare services and social services.”
The bill’s definition of “comprehensive healthcare services” is equally unhelpful in understanding the scope and breadth of the health services to be provided, Kirby and Michael say.
“Comprehensive healthcare services’’ mean “healthcare services that are managed so as to ensure a continuum of health promotion, disease prevention, diagnosis, treatment and management, rehabilitation and palliative-care services across the different levels and sites of care within the health system in accordance with the needs of users”.
It’s unclear what the BAC will determine
The powers and mandate of the BAC, as set out in clause 25(5) of the bill, do not shed any light on what it is precisely that the committee will be determining as a basket of benefits for users, Werksmans says.
“Nowhere in clause 25(5) is there a reference to the various definitions of services provided for in clause 1 other than for a healthcare service. Therefore, one is left with a distinct sense of dis-ease with what the mandate of the BAC is going to be when formulating the benefits that the scheme is to reimburse or not,” Kirby and Michael say.
Stakeholders’ concerns
The success of NHI may depend on the extent to which it can successfully manage, within funding constraints, the inevitable trade-offs between the types and comprehensiveness of different benefits in the package of care, according to the SAMJ article.
Other stakeholders that called for clarity on the benefits package were:
- The Faculty of Health Sciences at the University of Cape Town said it would be extremely challenging to create an affordable list of benefits, and the medico-legal risks associated with getting this wrong were high. Although some of the benefits may have to remain implicit, the NHI Fund should be explicit about the main health benefits to be covered, referral pathways, essential medicine and laboratory lists, and clinical guidelines, as well as the benefits the fund would not cover, the faculty said.
- Pharmaceutical multinational MSD said the bill does not make clear the criteria for determining the benefits package, and there is a lack of clear inclusion and exclusion criteria, a lack of clarity on meaning and intent of phrases such as “medically necessary” or “comprehensive”, and a lack of principles or guidelines within which the BAC would be required to act.
- Mediclinic called for a “transparent process for determining the benefits package, taking into account access, quality and affordability”.
- US multinational medical technology company Becton Dickinson called for the governance processes in the selection and functioning of the BAC and the Health Services Pricing Committee to be adequately defined.
Further grounds for a constitutional challenge?
For opponents of the NHI Bill, the upside to the lack of clarity on benefits is that it provides another potential ground on which the constitutionality of the bill can be challenged.
“The bill is intended to progress the state’s obligation to provide access to healthcare services in terms of section 27 of the Constitution. However, one is unable to determine how that obligation is being fulfilled if one is unable to discern what it is the state is doing to fulfil it or how that will be achieved. Simply publishing a bill and styling it as a national health insurance endeavour does not cut the constitutional mustard,” say Kirby and Michael.
They say the vagaries surrounding benefits do not bode well for the constitutional health of the bill or, more importantly, a proper assessment of whether the state will be in a position, meaningfully or at all, to progressively advance access to healthcare as it is constitutionally mandated to do and, according to the preamble to the bill, it is intending to do.
According to the SAMJ, Mediclinic said the Constitution imposes a positive obligation on the state to realise the right of access to health care 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 could fail in its positive obligation, and if the bill results in reduced access to healthcare services, the state will also fail in its negative obligation.
