SAMA launches most comprehensive constitutional challenge yet to NHI Act

SAMA has launched the most comprehensive constitutional challenge yet to the NHI, saying it is dangerously flawed as it cites concerns over the NHI’s impact on doctors, patients and the healthcare system.

Dr Mvuyisi Mzukwa, chairperson of the South African Medical Association (SAMA), said today that other legal efforts focus significantly on Section 33 of the National Health Insurance (NHI) Act, which prohibits medical schemes from providing coverage once the NHI is “fully implemented,” or on the interests of private sector providers.

“SAMA’s case extends far beyond this. SAMA is challenging multiple provisions that will severely prejudice both doctors and their patients, raising fundamental concerns about access to care, administrative barriers, financial feasibility, the impact on the public health sector and the long-term sustainability of the NHI South Africa’s healthcare system.”

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SAMA’s legal action driven by real-world implications of NHI Act

Mzukwa pointed out that SAMA’s legal action is driven by the real-world implications of the NHI Act, particularly the bureaucratic and structural failures it introduces. The key issues that will be contested include that:

• Every South African will be required to register as an NHI “user” receiving treatment. The process raises concern about access, as unregistered individuals may face challenges even in emergencies.
• Registration can only occur at an accredited primary healthcare provider such as a GP, clinic, or professional nurse. Patients will be forced to seek care at their registered facility first, even if that facility is overloaded or incapable of providing appropriate treatment. There is no clarity on how patient transfers will be managed.
• Restriction to one’s area of registration undermines the very principle of universal access to healthcare coverage. This limitation contradicts one of the fundamental building blocks of a well-functioning health system, namely robust information systems and technology. “In our view, these are essential to achieving the Universal Health Coverage vision,” Mzukwa said.
• South Africans need a universal electronic health record system that is accessible at the click of a button, anywhere in the country and across the public as well as private sectors. Without this, the effectiveness of UHC will be significantly compromised.
• Complaints about poor service delivery will be handled by a single, centralised investigative unit within the NHI Fund’s national office. Given the scale of the healthcare system, this mechanism is wholly inadequate for timely or effective resolution of grievances, Mzukwa said.
• The NHI Act lacks clarity on what services will be covered under the NHI. SAMA’s legal filing highlights nine different, conflicting definitions of NHI benefits within the Act itself. South Africa is embarking on a radical overhaul of its healthcare system without even knowing what it will offer patients, Mzukwa pointed out.
• Procurement of medical supplies under the NHI remains entirely unclear, raising serious concerns about supply chain management and stock shortages.

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SAMA also worried about NHI’s impact on doctors

Mzukwa said that SAMA is also worried about the NHI’s impact on doctors and particularly alarmed by the consequences of the NHI Act on healthcare professionals, while many are already stretched beyond their limits. That includes:

• Both public and private providers must meet impossible accreditation standards, many of which can only be fulfilled after registration, a paradox that makes compliance unattainable.
• South Africa’s healthcare workforce is already under immense strain. SAMA’s expert analysis shows that a private-sector surgeon currently works at 158% of normal capacity. Under the NHI, that same surgeon would be expected to work at 368% capacity for a significantly reduced income, a scenario that is unrealistic and unsustainable.
• The NHI Act makes no provision for insuring private doctors against medico-legal claims, although they will be required to operate within NHI protocols.

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Concern about effect of NHI on patients

Mzukwa also pointed out that patients will be affected by:

• Medical scheme members and beneficiaries of RAF, COIDA and ODMWA losing their current benefits, which will be replaced by an ill-defined, unworkable and unaffordable NHI system. This represents a major step backward in terms of healthcare access, he said.
• Key decision-making powers centralised at the national level, with no assessment of whether national government structures have the capacity to manage this enormous responsibility.

SAMA’s case is supported by leading experts who have assessed the financial, operational and ethical implications of the NHI, Mzukwa said. Two South African experts have provided analyses on affordability, the financial impact on doctors and the feasibility of transferring key healthcare functions from provincial to national control.

An international expert on UHC has also offered insights on whether the NHI is the only pathway to UHC. The report includes an analysis of countries purported to be blueprints for the NHI Act.

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SAMA and others offered president alternative to NHI

Mzukwa said SAMA, as part of the Universal Healthcare Access Coalition (UHAC), together with other healthcare organisations and professionals, introduced a new reform framework to address South Africa’s healthcare challenges, outlining solutions to improve equity, efficiency and sustainability in both public and private healthcare sectors.

“Key features include separating funding and purchasing functions for better accountability, strengthening public healthcare governance through decentralisation and expanding contributory medical schemes to ease financial strain on tax-funded healthcare.

“The framework also calls for depoliticising healthcare management, ensuring fiscal sustainability and fostering regional cooperation. Submitted to the president for consideration, the proposal aims to provide a viable alternative to the NHI system, which UHAC deems fiscally unfeasible.”

Mzukwa emphasised that SAMA is not opposed to the goal of universal health coverage and believes in equitable, high-quality healthcare for all South Africans. However, he said, the NHI Act risks collapsing the healthcare system rather than strengthening it.

“SAMA’s litigation is about protecting patients, ensuring doctors can continue to provide care and preventing the state from implementing a dangerously flawed system that could do more harm than good. We reaffirm the urgency of this legal challenge and remain committed to advocating for constitutionally sound, evidence-based healthcare reform that benefits all South Africans.”