‘We have no idea’: Cost and benefits of NHI questioned as constitutional challenges loom

The cost and benefits of National Health Insurance (NHI) are in question as the NHI Act faces constitutional challenges from various quarters. Various organisations indicated they will turn to the courts after President Cyril Ramaphosa signed the NHI Bill into law on Wednesday.

“Neither of these two issues about NHI have been clarified to date. Bear in mind this has been a process that started with the Green Paper, which were this health policy’s general broad brush principles and setting out what we now have distilled into the Act. However, after that process, we still do not know what in fact we will be buying,” Neil Kirby, director and head of healthcare and life sciences at Werksmans Attorneys, says.

“We have no real idea. We have an inkling that it could be primary health care benefits to start with. And we know that maternity benefits as a defined benefit along with emergency care benefits are going to be moved into NHI away from medical schemes. Therefore, we have an indication but nothing that you can say thank goodness for the NHI.” 

Watch: NHI Act signed – What now?

Kirby points out that the NHI Act must be seen in the context of three primary themes: the process of bringing it into law, the rationality approach and the Constitution.

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Process of bringing NHI into law

“We must ask if the process of brining NHI into law has been fair to those involved and if there was a proper appreciation of the implications for the stakeholders that are interested and affected by this legislation. 

“And in that process, were they heard and has what has been said been taken into account when putting this all together?” 

Kirby says the first question here is how much is NHI going to cost and can we as a country, whether the cost is R140 billion to start with and R700 billion at the end, afford it? 

“Can we afford to have national health insurance along with other national priorities and policies that are equally as important as healthcare, such as education, security and infrastructure?” 

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The NHI and the Constitution

He says we must also ask how the NHI will work in law. “Does it work through the lens of the Constitution as the supreme law of the country? The constitutionality of the NHI Act is going to be the argument we will have.”  

Kirby says there will be two sides to this argument. “Certain people will say absolutely, it is constitutional. It is completely constitutional. It solves the problem that so many South Africans face of a lack of healthcare.

“And then you have the detractors, potentially like me, who will say no, I think it is a bridge too far. I think you put too much emphasis in the wrong spots here. We have constitutional friction and we need to resolve it.” 

He says another issue will be South Africans ability to choose where they procure their healthcare and if they can afford NHI and private healthcare. “There is no requirement for anyone to join the NHI. You can choose to do that. South Africans are required to pay for NHI through a mandatory pre-payment system and in exchange receive healthcare services as defined free at the point of care for the services.”

However, he says if you do not join the NHI, will you be inclined to pay your medical scheme premium too, which may be too expensive for many people? “It may very well be that you do not have a choice: you will have to join the NHI because you cannot afford both the NHI mandatory pre-payment and the voluntary medical scheme contribution.” 

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Sakeliga will join opposition to NHI Act

Meanwhile, business organisation Sakeliga says it will oppose the implementation of NHI as it considers the NHI Act an unacceptable and irresponsible legislative proposal. 

“We urge businesses and the public to resist this attempted nationalisation of healthcare services and medical practitioners wherever possible. We also encourage support for organisations committed to challenging the NHI Act in various ways, including through litigation and promoting freedom in healthcare services.” 

Sakeliga says the promotion of these proposals by the presidency is irresponsible in part because it fosters false expectations about the public availability of private healthcare resources.

“Sound ethics require that businesses and the communities they serve oppose state intervention where that intervention is harmful and unjustified, as is clearly the case with the NHI proposals. In such cases, it is appropriate for businesses to strive for maximum achievable non-compliance in their own and the public interest.”