From CompliNEWS | Financial Service Intelligence Watch
Solidarity challenges NHI Act
Legalbrief Today
Failures in the SA public health system have led to inequality in access to healthcare which the National Health Insurance (NHI) Act will not be able to fix. A TimesLIVE report says this is one of the arguments advanced by labour union Solidarity in papers filed on Friday in the Gauteng High Court (Pretoria), where it is asking for the law to be declared unconstitutional and invalid. Solidarity’s CEO of legal matters, Jasper van der Bijl, said in his founding affidavit that the ‘feasibility and sustainability of the scheme under the NHI Act is dependent on a money Bill which is yet to be introduced and passed by Parliament’. ‘All evidence has shown that such a Bill is not feasible and will have disastrous consequences for the economy.’ He also argued that ordinary South Africans’ lack of access to timely and high-quality healthcare interventions had been caused by public health system failures. ‘The public and private health systems developed in tandem and, taken together, enable universal access to healthcare. However, the public health system is marred by tolerance of ineptitude; leadership, management and governance failures; and the lack of a fully functional district health system,’ said Van der Bijl. He argued that the new law ‘necessitates massive reorganisation of the current healthcare system’ and would ‘require material structural change, at significant cost’. ‘Millions of South Africans who presently enjoy access to healthcare in both the public and private sectors are faced with uncertainty about how the NHI Act will impact the levels of access to healthcare they currently enjoy,’ he added.
Van der Bijl said the Act had been drafted as if it were a policy document, ‘with proposed implementation over what some say may be decades just adding to the vagueness and uncertainty’. ‘Central to the vagueness concern is section 33 of the NHI Act, which allows for the Health Minister – at his or her discretion – to make a declaration on when the NHI is ‘fully implemented’, by consequence of which medical schemes will then only be allowed to provide ‘complementary’ cover,’ said Van der Bijl. According to the TimesLIVE report, he said it remained unclear under the Act whether any private medical institution or healthcare provider not contracted with the NHI Fund – either by choice or exclusion – might be prohibited from rendering healthcare services to the public. ‘The adoption of legislation that mandates the assumption of responsibility for the purchase of all healthcare services by the state (through the NHI Fund) without a sustainable funding model cannot possibly achieve the stated governmental purpose,’ said Van der Bijl. However, the Health Department’s Deputy DG Nicholas Crisp – tasked with overseeing the establishment of the NHI Fund – said the issues raised by Solidarity had already been addressed in Parliament. ‘The department responded (to the issues raised in Solidarity’s papers) when requested to do so by the portfolio committee,’ Crisp said.