DA seeks urgent legal opinion on constitutionality of NHI Bill

By Janice Roberts

By Mmusi Maimane – Leader of the Democratic Alliance.

Globally, countries are moving towards the provision of universal healthcare. It is without doubt that South Africa needs to follow suit. There still exists “two South Africa’s”, one with access to quality private healthcare, and one with access to substandard, public healthcare. This needs to be rectified through progressive legislation that will not break both the health system and the economy.

The Constitution provides basic free healthcare for all those within South Africa who do not have any form of medical aid/medical insurance. Any person, regardless of citizenship, is entitled to free basic healthcare. At present, this costs approximately R222 billion per year, servicing over 80% of SA’s population. South Africa – like many other countries across the globe – provides free access to basic healthcare for all its citizens.  However, it is the quality of the healthcare received by the majority of South Africans that is of pressing concern.

This reality has ushered in a fresh discussion on healthcare in the form of the NHI – one which seeks to hand government unfettered power in order for them to be the sole health provider in the country.

At its very core, the NHI Bill seeks to fundamentally alter healthcare policy in South Africa by creating a State-Owned Entity (SOE) to consolidate all funds within the public and private health system. This is the nationalisation of all healthcare in SA. Health Minister Zweli Mkhize himself admitted that medical aids will most likely cease to exist under NHI.

It is our view that in its current form, the NHI Bill will not bring about universal healthcare but will consolidate power, cripple the private health sector and collapse our economy. At a conservative estimated cost of over R250 billion, the NHI is to the health sector what Zuma’s nuclear deal would have been to the energy sector.

The ANC seems to think that in order to fix state hospitals, private sector healthcare needs to be destroyed. Instead of focusing attention on fixing the current condition of our public healthcare system, the ANC government has introduced a scapegoating piece of legislation in the form of the NHI.

And it is not just limited to healthcare. There has been an intensified assault on our Constitution, and on individual rights, choice and freedom by the current government in an attempt to cover up its own endless list of failings. From property and land rights to the independence of the Reserve Bank, these are the last kicks of a dying horse that is hellbent on outsourcing responsibility for its own failures.

It is our view that the role of national government ought to be this: radically improve public healthcare – which is free at the point of entry – while strengthening private healthcare by increasing competition within the sector. Ultimately, the public health system needs to be at the same level of standard as the private healthcare system currently is. South Africans cannot afford a situation where it is simply a race to the bottom and their lives do not materially improve.

However, the NHI Bill will not achieve any of this.

Urgent Legal Opinion

After careful consideration of the Bill, we are not satisfied that it will pass constitutional muster and will therefore be requesting Parliament to seek a comprehensive legal opinion as to the constitutionality of the Bill in its current form – particularly in terms of Schedule 4 of the Constitution.

I have today written to the Speaker of the National Assembly, Hon. Thandi Modise, urgently requesting that on behalf of Parliament she instructs the Parliamentary Legal Services to obtain a legal opinion on the Bill well before it appears before the Health Committee and eventually the House.

Schedule 4, Part A of the Constitution sets out the functional areas of concurrent national and provincial legislative competence. That is, areas where decision making is split between national and provincial spheres of government.

“Health services” is an entry under this part, which means that both national and provincial legislatures share the competency to make legislation in respect of matters relating to health care. The key word here is “concurrent”.

It appears that the NHI Bill proposes a system that provinces will not be able to opt out of. “Health services”, as defined, will be bought and determined at national level, with the Minister of Health effectively becoming the single authority over the health sector in the country.

On face value, it appears that the Bill actively seeks to curtail this constitutionally granted shared power between national and provincial spheres of government, and we believe that the Bill and the system that it proposes is overly intrusive on the constitutionally enshrined rights of provincial legislatures to also legislate on matters relating to healthcare.

It is this possible constitutional breach which Parliament must probe and must begin by obtaining a legal opinion. If we fail to do so, the Bill may spend years in the courts – sapping public funds while South Africans remain trapped without quality healthcare.

Analysing the NHI Bill

The DA has done a comprehensive analysis of the NHI Bill and highlighted the aspects of the Bill which are catastrophic, not just for the health system but for the economy at large.

Should this Bill be passed in its current form, all South Africans will be the main causalities of this system. There are deep inequalities in the system. 84% of South Africans are dependent on an ailing health system with only 16% of our people who can afford private medical care.

The broader inequalities of insiders and outsiders in this country play themselves out painfully within the health system. In line with global trends, South Africa must move towards Universal Healthcare – however not in the form of NHI.

The greatest tragedy of this Bill is that it will not in any way achieve universal healthcare for South Africa. Instead, it is bound to destroy the health system as we know it by fragmenting it, eroding provincial powers, centralizing and nationalizing healthcare, and establishing a multi-billion rand SOE that will be in the hands of the politically connected few.

The DA is opposed to the following aspects of the draft Bill:

The establishment of The National Health Insurance Fund as a public entity or State-Owned- Enterprise – the Bill explicitly states that the fund will operate as a public entity which will be constituted by the pooling of funds both from the public and private sector. The Minister has sole discretionary powers over this fund. In addition, the board which is appointed by the Minister, will be tasked with overseeing this fund, leaving very little room for adequate checks and balances. In addition, the Bill makes provision for investigative powers in cases of corruption and maladministration within the National NHI Fund Office , and not through any independent body. This fund will serve as just another SOE vulnerable to grand corruption at the expense of the nation’s entire health system.

The nationalization of healthcare and clear erosion of provincial powers – the Bill completely centralizes the provision of healthcare by placing the management of all central hospitals under the national department. This is, in our view, is the undermining of provincial powers as enshrined in the National Healthcare Act of 2003. In practice, the equitable share of funds to provincial departments will directly finance the fund, meaning poorer health outcomes for ordinary South Africans. Provincial departments are already stretched in terms of the healthcare services they are required to roll out, and a reduction in their equitable share will be disastrous for the actual delivery of healthcare. Provinces are at the coalface of the delivery of health services and must be given more funds to improve public health care, not less.

Fragmentation of the health system – Currently, the health system is premised on an all-encompassing referral system, from community health workers who form part of the primary health system right through to tertiary hospitals. The Bill seeks to change this by having tertiary hospitals under the management of the national department. This will lead to a complete breakdown in the system, and ordinary South Africans will not be able to hold provincial departments to account for poor outcomes. In addition, the referral system that is prescribed by the Bill, will slow down the provision of emergency care. According to the legislation patients would need to follow a cumbersome and bureaucratic referral path before being seen by a specialist. This will curtail the powers of all medical healthcare professionals who can easily identify emergency cases that need urgent attention. Fragmenting the health system will bring normal functioning systems to a grinding halt, and take power and decision making further away from people, not closer to them.

The additional tax burden that will be imposed on South Africans – The financing model of this Bill will mean the removal of the tax credit benefit afforded to medical aid clients while imposing a new tax on ordinary South Africans to fund this new SOE. Ordinary South Africans have been squeezed dry by government and cannot be subjected to yet another tax.

The complete removal of choice for South Africans – this Bill removes the autonomy of South Africans to choose their own healthcare. It mandates the national department of health as the sole provider of healthcare in the country while all private healthcare providers will be contracted by the state. This means that there is absolutely no choice for people on which services to purchase, nor will there ever be competition to drive up the quality of healthcare. Medical aids will cease to be useful as the model makes the state the only provider of healthcare in the country. Considering that the ANC government will be the sole medical service provider in the country, medical aid companies will also have to contend with payment from the state. Currently, the ANC government is battling with upholding the 30-day rule of paying service providers and this problem will only be compounded. This was clearly demonstrated at each and every NHI Pilot Project where payments were never made on time and private GPs simply pulled out of the system. This will, no doubt, lead to massive brain drain and erosion of talent in our health system. Doctors and health professionals will seek opportunity beyond our borders.

The DA’s Sizani Universal Healthcare Plan

In contrast to the NHI, the DA’s Sizani Universal Healthcare Plan will ensure all South Africans are provided with quality healthcare, without crippling the economy.

The DA plan would ensure the following:

It will be funded through the current budget envelop which includes the tax benefit currently afforded to medical aid clients;

It would strengthen the role of primary healthcare in many communities;

It would invest heavily in the provision of maternal and child health services, and the training and provision of healthcare professionals;

It would reinforce the powers of provinces by ensuring they are adequately funded and equipped to provide quality healthcare to all;

Through these interventions, all South Africans would have access to a quality health system that provides them with a standard package of care across all facilities;

Medical aid companies would be used as a top up measure for those South Africans who choose to use them and who can afford to do so;

Ultimately this system would increase competition, drive up quality, and afford every South African the choice of which medical provider they wish to use.

The DA team on health will spend the next 100 days driving support for the DA’s alternative plan. We will demand that Parliament rolls out an extensive public participation process in the form of public hearings and submissions across all 9 provinces.

Ultimately, the NHI Bill has far reaching consequences for each and every South African. It is key that public and civil society input is taken on board. It is telling that the majority of inputs made in the last version of the Bill have not been taken on board and there are very few changes which have been made to the current Bill as a result.

We cannot allow Parliament to be a rubber-stamp station for problematic pieces of legislation. We will also be engaging with various civil society organisations, health interest groups and health providers to implore them to make inputs to this Bill in order for there to be material changes.

The inequalities of the current health system can be rectified but this would require commitment to growing the economy, partnership with the private sector, strengthening the powers and functions of provincial departments and rolling out Universal Health Care within the current budget envelope. South Africa cannot afford NHI.

NHI will not be able to improve the lives of our people. The DA is prepared to fight this Bill all the way to the Constitutional Court should the need arise.



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