The National Health Insurance (NHI) Bill, passed by the National Assembly in June and with the National Council for Provinces, is likely to face legal action if it goes ahead in its current form.
Among a growing chorus of reservations about the government’s plan for universal health, trade union Solidarity said yesterday it would intensify its fight against the NHI by also holding individuals, including the president and the ministers of finance and health, personally liable for the consequences, should it be implemented.
Meanwhile, a group of professionals at legal firm Webber Wentzel said the NHI was not clear about how South Africa’s large and complex medical scheme and insurance industry would be affected.
This was according to Lenee Green, partner; Mateen Memon, associate and Mariam Ismail, trainee attorney, at the firm.
They said the NHI’s aim to make primary healthcare widely accessible was laudable and the Bill had been closely scrutinised by various stakeholders in the healthcare sector.
Medical schemes and insurers in particular had expressed concern about the effect the Bill would have on their current businesses.
For instance, the largest private medical aid scheme, Discovery, said last month that the NHI proposals were unsustainable, and it remarked that no other country in the world had ever implemented policies to limit the scope of private healthcare.
The government has tried to allay mounting criticism of its NHI plan, saying the passing of the NHI Bill would not result in an immediate overhaul of the healthcare system, and it would be implemented in phases.
The Bill seeks to create one government fund that will be able to pay for both private and public health facilities.
The Bill, among other things, covers: who will be able to access healthcare services; how these services will be funded; the establishment of a board and advisory committees, general provisions applicable to how the fund will operate, complaints about and appeals of decisions made by the fund; and the source of income of the Fund and transitional arrangements.
It states that once the NHI is fully implemented, medical schemes can only offer complementary coverage for services not reimbursed by the NHI.
It would mean medical schemes could not cover services already covered by the NHI, potentially jeopardising their existence.
“This approach may face constitutional challenges related to the right to access healthcare, property rights of medical schemes, and freedom of trade and profession,” the legal professionals said.
Solidarity, meanwhile, said should the government decide to proceed with the NHI, it would request a cost order against it in a court process.
In a letter of demand issued to those involved earlier this week, Solidarity said that inputs and reports – also from the Solidarity Research Institute (SRI) – clearly explained how unaffordable and unworkable the NHI was.
“To persist with it nevertheless would be irrational. Moreover, it is a violation of the ethical codes and standards these government office bearers should commit themselves to. These office bearers do indeed have the power to decide against the NHI given the strong evidence to the effect that it would be harmful to the country and its citizens,” Solidarity chief executive Dr Dirk Hermann in a statement.
He said a cost order would be sought in person against President Cyril Ramaphosa, the Minister of Finance, Enoch Godongwana and the minister of health to hold them individually liable.
In addition, accountability would be demanded from the National Treasury, the Department of Health and the National Council of Provinces, which were all responsible for the establishment of the NHI.