Conflicting legal views on NHI leave MPs flummoxed

Parliament’s health committee has been presented with two opposing legal opinions on the National Health Insurance (NHI) Bill, leaving MPs with an unexpected headache as they finalise deliberations on the proposed law.

The bill is intended to breathe life into the ANC alliance’s plans to provide all citizens with healthcare services free at the point of delivery.

On Wednesday, parliament’s legal services warned that several of the bill s provisions including those on medical schemes and asylum seekers could give rise to a constitutional challenge. But the office of the state law adviser presented a legal opinion saying that the bill met constitutional muster.

“The role of medical schemes will be fundamentally altered once the NHI is fully implemented,” said parliamentary legal adviser Sueanne Isaac, referring to clause 33 of the bill, which says medical schemes may provide cover only for “complementary services” not covered by the NHI Fund, once NHI is fully implemented.

“If medical scheme users suffer a reduction in access to health care as a result of full implementation of the NHI, this will give rise to a constitutional challenge based on a violation of section 27 (1) of the constitution,” she warned.

Section 27 (1) of the constitution says everyone has the right to access health services.

The bill’s provisions for asylum seekers strips them of their access to primary health care, reproductive health services and antiretroviral therapy, a retrogressive move that cannot be done without compelling justification, which the health department failed to provide, she said.

Section 27 (2) of the constitution provides for progressive

realisation of access to health services.

By contrast, deputy chief state law adviser Ayesha Johaar presented a legal opinion saying that the bill did not infringe any fundamental rights in an unlawful way. The provisions had been considered to ensure they aligned with the constitution and other legislation, she said.

Freedom Front Plus MP Philip van Staden said he would seek legal advice on the conflicting positions put forward by the state law adviser and parliament’s legal services.

Even if the ANC-dominated committee made the changes recommended by parliament’s legal services, it was still likely to face legal challenge, he said.

“I foresee, and have warned the ANC, that this bill will spark huge legal action,” he said.

Isaac warned about the bill’s proposed reduction of the role of provincial health departments, which goes hand in hand with proposed amendments to the National Health Act, saying provinces might reject the plans when the National Council of Provinces considers the bill.

Provincial health departments would be stripped of most of their functions, and the minister will be given the power to determine their role in regulations to the act. These functions were a substantive matter and should not be delegated to the health minister to determine in regulations, said Isaac.

She raised concern about the governance of the fund, noting that clause 11, dealing with investigations, requires the fund to investigate itself. The bill should stipulate that investigations must be conducted independently and without interference from the minister, the board and third parties, she said.

Isaac said the proposal to exempt all transactions in terms of the NHI bill from the Competition Act was not in line with the constitution’s provisions for competitive and cost-effective procurement. Only the NHI Fund should be excluded from the act, she said.