‘NHI Bill must pass constitutional muster’: Call on Ramaphosa not to sign it into law

Business groups BUSA and B4SA are calling on president Cyril Ramaphosa to adhere to his commitment in late November last year to test the constitutionality of the NHI Bill and not go ahead and sign into law in its current form.

After parliament adopted the NHI Bill in November, BUSA submitted a detailed formal petition to the president asking him to send it back to the National Assembly on the grounds of unconstitutionality, Cas Coovadia, CEO of Business Unity South Africa (BUSA), says.

“We hope that the president considers the long-term impact and risks of assenting to a bill that so clearly flouts the Constitution,” Coovadia says.

He points out that BUSA and B4SA consistently supported the policy direction towards universal health coverage but have reservations about the NHI Bill’s design and implementation. Their inputs were intended to remedy the constitutional, funding and practical deficiencies in the Bill in the best interests of citizens, the economy and the country.

“There have been suggestions that the president only sign certain provisions of the Bill into law but BUSA believes that piece-by-piece proclamation of the NHI Bill will not provide the necessary clarity and certainty. Instead, this will hamper collaboration and impede initiatives which can put the country on a pathway to universal health coverage, as well as undermine critical investment in the healthcare sector and the economy more broadly.”

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NHI Bill must be constitutional, affordable and implementable

What the country needs is an NHI underpinned by the Constitution and which is affordable and implementable. This bill does not meet these criteria and is not ready to be signed into law, Coovadia says.

The business groups consistently cautioned that the Bill, as it stands today, will materially delay access to universal health coverage, lead to disinvestment in the healthcare sector, further damage South Africa’s already fragile economy and create significant risks for the country in terms of the availability, quality, management and governance of healthcare.

“We recognise that the country is in pre-election mode and that the adoption of the NHI Bill is a cornerstone of government’s policy platform and its election campaign. However, the weaknesses and the material negative implications of the NHI Bill, in its current form, will have devastating consequences for the country and her people for generations to come. There is a significant obligation on the president to ensure the bill passes constitutional muster,” Martin Kingston, chair of the B4SA steering committee, says.

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Key procedural and substantive constitutional issues in NHI Bill

 Some of the key procedural and substantive constitutional issues BUSA raised in its petition to the president include that:

• procedurally, parliament’s socio-economic impact assessment process was inadequate;
• the Nedlac process regarding the Bill was not followed through;
• public participation inputs were not properly considered;
• multiple constructive inputs from business and other stakeholders were ignored.

Parliament’s portfolio committee on health also ignored an opinion by Parliamentary Legal Services, which highlighted that several areas of the Bill are unconstitutional.

BUSA also highlighted the fact that the process the National Council of Provinces’ (NCOP) select committee on health and social services was rushed, inadequate in terms of its mandate and that it failed to properly deal with reports submitted by the provinces.

“It is important that the NCOP committee failed to incorporate amendments, provincial public submissions and technical flaws noted by several provinces and even the department of health itself,” Coovadia says.

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Unfettered power for minister of health also unconstitutional

In addition, BUSA noted that section 33 of the NHI Bill is unconstitutional in giving the minister of health unfettered power to determine the restricted role for medical schemes, especially as this power is unnecessary for achieving the policy objectives of the bill.

“This is damaging to the private health sector as a whole and there is no rational basis for this approach.” BUSA noted that the single fund model, where government will buy and pay for all healthcare services for everyone, introduces significant concentration risk and adversely impacts people’s ability to seek care in the private sector.

This is also likely to result in significant strain placed on the public sector. The amendments BUSA proposed seek to allow for the role of medical schemes to be determined in a consultative process, in measured phases in a manner that is consistent with the policy objectives.

BUSA also highlighted that the procedures for accessing healthcare and appealing treatment denied by the National Health Insurance (NHI) could potentially hinder or violate the right to access health services, making them unconstitutional.

The NHI Bill provides for adding new taxes and altering tax policies, tasks that should be managed by National Treasury in a Money Bill according to the Constitution, while the bill also breaches the separation of powers by giving the minister of health judicial discretion.

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No lawful procurement in NHI Bill

Coovadia says BUSA also believes that the contracting provisions in Sections 11 and 26 of the NHI Bill are unsustainable and inconsistent with the principles of value-based care and strategic purchasing, which is the global trend for sustainable healthcare contracting that is patient centred.

“They focus on price in an unsophisticated manner which contradicts the Constitution’s criteria for lawful procurement.”

The roll-out envisaged in Section 57 of the NHI Bill must be linked to workable and relevant milestones for South Africans to have reasonable access to quality healthcare services, rather than dates which are arbitrary and unrealistic and already outdated, he says.

Section 58 of the bill introduces legislative changes that seem to take immediate effect but this is in conflict with Sections 31 and 32 of the Bill, leading to the immediate removal of health functions from the provinces.

Coovadia points out that this affects approximately R196 billion in funding from Provincial Equitable Share allocations and Conditional Grants. Additionally, the alterations to the Medical Schemes Act contradict Section 33.

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Conflict with other legislation

There are also conflicts with the Competition Act and the Protection of Personal Information Act, which are unnecessary to give effect to universal health care.

“BUSA and B4SA mentioned all of these constitutional concerns in their submissions and during various engagements with relevant stakeholders and parliamentary committees. BUSA also brought these issues to the president’s attention in its petition to ensure that, as part of due process, proper consideration is given to the fundamental procedural and substantive constitutional flaws in the current version of the bill,” Coovadia says.

Kingston says BUSA and B4SA are confident that, in a constitutional democracy, the president will consider these views when he assesses the constitutionality of the NHI Bill before assenting to it, Kingston says.