Legal challenges loom for NHI as it steps on constitutional rights

President Cyril Ramaphosa signing the National Health Insurance Bill into law at the Union Buildings. Picture: Jacques Naude / Independent Newspapers

President Cyril Ramaphosa signing the National Health Insurance Bill into law at the Union Buildings. Picture: Jacques Naude / Independent Newspapers

Published May 19, 2024


Nicola Mawson

ALTHOUGH medical aids are generally in favour of universal healthcare, there are legal challenges in the offing as some schemes, such as South Africa’s largest – Discovery – believe that the National Health Insurance (NHI) Act simply is not implementable in its current form.

President Cyril Ramaphosa signed the bill into law on Wednesday, although the implementation dates have yet to be announced in the Government Gazette.

Discovery CEO Adrian Gore last week said “the act is likely to trigger a range of legal challenges” given that it’s not currently a feasible measure to provide universal healthcare, adding that “Discovery will also take the necessary action as required”.

The Health Funders Association will also take the government to task, with chairperson Craig Comrie saying, “where constitutional and other legal issues exist, we will take the necessary action to protect the constitutional rights of individuals and their medical scheme benefits”.

Fedhealth Principal Officer Jeremy Yatt said: “Vehement opposition to the bill from many different stakeholder groups and individuals alike is further proof of the concerns regarding its impact on the quality of care, the sustainability of the health system and the rights of patients.”

Importantly, Gore added that medical scheme cover and benefits would not be affected for a long time to come. “We believe it will take a long time – a decade at least – to achieve ‘full implementation’ given the scale and complexity of reforms needed.”

Comrie said implementing the law would be a complex and unprecedented process that would necessitate extensive reorganisation of the health care sector.

Gore said that even when NHI was fully implemented, medical schemes would still be able to provide cover for benefits not covered by NHI. “This is important because the NHI is unlikely to have sufficient funding to provide an extensive package of benefits.”

Comrie said the act would be “constrained by significant financial and structural constraints and complexities, not to mention legal challenges”. “The NHI Act in its current form will not achieve equity in health care and there are better ways to achieve the genuine objectives of universal health coverage.”

Lee Callakoppen, Principal Officer at Bonitas, said the law was “still a long way from being fully implemented with several unanswered questions with regard to legalities and practical implementation”.

John Botha, joint CEO of Global Business Solutions, said a significant concern regarding NHI was “the spectre of corruption in South Africa”. He added the implementation of NHI would mark the largest procurement endeavour in the nation’s history, valued at about R5 billion annually.

Other issues Botha raised included funding, which was a serious challenge given South Africa’s macroeconomic environment. In addition, he said, the fact that the law would be implemented in two stages risked delays and inconsistencies in health care service provision.

In a holding statement, Bestmed said it was committed to engaging with government to find a way that allowed medical schemes to continue to fulfil a meaningful role in the health care value chain and contribute to enabling access to high-quality health care into the future.

Warning against panic, the Council for Medical Schemes pointed out that “the Medical Schemes Act and its regulations still apply, and we call upon all members of medical aids not to abandon or cancel their membership”.