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There are numerous problems with the content and implementation design of the NHI Act, which is why the South African Private Practitioners Forum is challenging the constitutionality of the Act.
President Cyril Ramaphosa signed the NHI Bill into law in May despite various organisations calling on him to refer it back to parliament.
Recent debate has centred on the effective realisation of the right to access healthcare, which the state is required progressively to realise for all South Africans, irrespective of their background and income, Prelisha Singh and Martin Versfeld, partners and Alexandra Rees, a senior associate at law firm Webber Wentzel, say.
Webber Wentzel is representing the South African Private Practitioners Forum (SAPPF) in its bid to challenge the constitutionality of the NHI Act.
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Singh, Versfeld and Rees point out that an assessment of South Africa’s current healthcare landscape shows a stark difference between private and public healthcare.
“The country has a high quality, effective private healthcare offering. However, it is currently inaccessible to the many South Africans who cannot afford private care or medical aid payments.
“Public healthcare, on the other hand, is understaffed, poorly managed and plagued by maladministration and limited facilities.”
The NHI Act was positioned as the vehicle to address this disparity and a desire to take steps towards achieving universal healthcare in South Africa, but Singh, Versfeld and Rees say a closer reading of the Act highlights numerous problems with its content and implementation design.
“The absence of clarity, detail or guidance in the NHI Act makes it impossible to assess how it will actually be implemented or, by extension, what the effects of this implementation will be.”
They say this is particularly concerning given that years have passed since the economic assessments that the NHI Act is based on were done.
“Government’s apparent lack of consideration of submissions by affected stakeholders during multiple rounds of constitutionally required public participation is also a problem.”
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The SAPPF underscores these deficits by asking the Gauteng North High Court to review and set aside the president’s decision to assent to the NHI Act and declare the Act itself unconstitutional.
Singh, Versfeld and Rees say Ramaphosa was obliged, in terms of sections 79 and 84(2)(a) to (c) of the Constitution, not to assent to the NHI Act in its current form. Section 79 requires the president to refer any bill that he believes may lack constitutionality back to parliament.
“In this case, it is difficult to conceive how the president, or any reasonable person in the president’s position, could not have had doubts regarding the constitutionality of the NHI Bill.
“The president’s decision to sign unconstitutional legislation into law, instead of referring it back to parliament for correction, is also irrational.”
They say the president’s duty to have referred the NHI Bill back to parliament is affirmed by the fact that the president is enjoined by section 7(2) of the Constitution, to respect, protect, promote and fulfil the rights contained in the Bill of Rights.
According to Singh, Versfeld and Rees, the SAPPF’s application demonstrates that the NHI Act, in its current form, infringes upon the rights to access healthcare services, practice a trade and own property.
“Patients, including those using private healthcare, will be forced to use a public healthcare system that currently fails to meet its key constituents’ needs.
“Practitioners’ rights to freedom of trade and profession will be infringed upon and the property rights of medical schemes, practitioners and financial providers will be unjustifiably limited.”
The current text of the NHI Act could make South Africa the only open and democratic jurisdiction worldwide to impose a national health system that excludes private healthcare coverage for those services offered by the state by legislation, they say.
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In addition, Singh, Versfeld and Rees, say, concerns regarding the rights infringements in the NHI Act are exacerbated by its lack of clarity and the fact that crucial aspects of its implementation are relegated to regulations, with no clear guidance provided in the Act itself.
Section 49 of the NHI Act provides, for example, that the NHI will be funded by money appropriated by parliament, from the general tax revenue, payroll tax and surcharge to personal tax.
However, they point out that this does not reconcile with section 2, which provides that the NHI will be funded through ‘mandatory prepayment’, a compulsory payment for health services in accordance with income level.
“Crucially, the extent of the benefits covered by the NHI’s funding mechanism and its rate of reimbursement, which affects affordability and the provision of quality healthcare, remain unknown.”
The NHI Act is, at best, a skeleton framework, seemingly assented to in haste, Singh, Versfeld and Rees say.
“It is conceptually vague to the extent that the rights it seeks to promote will be infringed if the Act is implemented. This renders the Act irrational, in addition to its other constitutional defects.”
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As the NHI Act represents a radical shift of unprecedented magnitude in the South African healthcare landscape, it should be – and is required to be – underpinned by meaningful public participation, up-to-date socio-economic impact assessments and affordability analyses and final provisions that provide a clear and workable framework for implementation.
Singh, Versfeld and Rees say it is not enough for these vital issues to be addressed after the fact.
“Further engagements with stakeholders and government’s solicitation of proposals cannot be used to splint broken laws. Collaborative engagement, including the solicitation of inputs for meaningful consideration, should take place during the law-making process, not after its conclusion.”
A shift of the magnitude proposed by the NHI Act without complying with the structures of the law-making process and the state’s adherence to constitutional standards, including rights protections, would be detrimental to the entire healthcare sector and not in the best interests of patients and practitioners, they warn.
“Notwithstanding the legal contestation, the NHI Act and the laudable goals underlying it can also be a watershed.
“The achievement of universal health coverage is an opportunity for the different stakeholders in South Africa’s healthcare system to meaningfully collaborate and inform well-supported, factually informed, rational and genuinely progressive legislative steps by the state.”
Given the questions surrounding the NHI Act and the evident need it seeks to address, the space exists for healthcare stakeholders to align around shared goals and values, Singh, Versfeld and Rees say.
“They can leverage their available resources to design a healthcare system that serves all of South Africa’s people fairly and equitably, using the significant existing resources invested in the country’s healthcare sector.”
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