Legal storm is brewing over the NHI Bill

The government is set to face an barrage of legal challenges to the controversial National Health Insurance (NHI) Bill, due to be signed into law by President Cyril Ramaphosa on Wednesday.

SA ’ s key industry associations for medical schemes, trade union Solidarity and SA’s biggest doctor organisation are poised to launch legal action, with further opposition expected from other healthcare professionals and organised business.

The bill sets in motion the government’s plan for achieving universal health coverage and seeks to scrap SA’s two-tier health system in which the majority of the population depend on the overburdened public health system and a minority have access to private care funded by medical scheme membership. Under NHI, the government aims to establish a single health system in which patients are provided with care that is free at the point of delivery, using both public and private facilities.

The Health Funders Association (HFA) and the Board of Healthcare Funders (BHF), which are independent industry associations for medical schemes and administrators, said they would launch legal action as soon as the bill was signed.

The HFA had anticipated the president would sign the bill close to the May 29 election and was ready to initiate its legal challenge, said chair Craig Comrie. “Our biggest concern is that it jeopardises the existing health assets in the country and doesn’t drive a value proposition that is attractive to doctors to remain in SA and be employed by NH.,”

BHF head of research Charlton Murove said the association was set to challenge the bill in court. “The big issue is the lack of consultation and the failure to take substantive concerns into account when drafting the bill. It has been railroaded through and is unconstitutional,” he said.

The SA Medical Association, which represents doctors, said it had hoped the president would refer the bill back to parliament

for further work. “In our effort to ensure the realisation of access to health for the underprivileged and better affordability ... for those that are already paying for their own healthcare, [we] fight for the protection of our healthcare services in relevant courts. Our legal team is preparing to launch this challenge,” it said.

Solidarity wrote to the president on Tuesday urging him to send the bill back to parliament, failing which it would start legal proceedings “within an hour of him signing it”.

Ramaphosa told an ANCsponsored lunch with business people on Tuesday that opposition to the NHI came from the well-off. “This is what usually happens. The haves do not want the have-nots to benefit.

“I know it drives fear into the hearts of many people just like when all our people were getting votes. It drove the biggest fear in the hearts of white people ... because they thought when everybody gets a vote it means that the privileges that [they] always had are now going to disappear,” he said.

Business Unity SA (Busa) and Business Leadership SA (BLSA) said they were disappointed at the latest developments. Both groups lobbied hard for changes to be made to the bill during its passage through parliament. They said it was unworkable and would damage the health system and the economy.

Busa would consider its options after Ramaphosa’s announcement on Wednesday, said CEO Cas Coovadia.

BLSA CEO Busisiwe Mavuso said the government had rushed a populist policy through parliament as an election ploy. “The law will never work, simply because there is no capacity to implement it, and as soon as it is signed it will be embroiled in litigation on several fronts, including its constitutionality,” she said.

Discovery CEO Adrian Gore said the bill was deeply flawed, likely to be challenged on numerous fronts, and lacked a viable financing plan. “There is no funding plan yet and, given the country’s constrained fiscal position, low economic growth and narrow tax base, this can only be solved in the longer term. We see no scenario in which there is sufficient funding for a workable and comprehen

INDUSTRY ASSOCIATIONS, HEALTHCARE PROFESSIONALS AND ORGANISED BUSINESS PREPARE FOR LEGAL CHALLENGES

sive NHI in its current form — hence our conviction that private sector collaboration is vital, and that full implementation of the bill remains a long way off, likely decades,” he said.

The SA Health Professionals Collaboration (SAHPC), a group of nine medical, dental and allied healthcare professional organisations representing more than 25,000 individuals, said it was profoundly disappointed that the bill was to be signed into law.

The SAHPC wrote to the president in December, urging him to refer the bill back to parliament on the grounds that it was unconstitutional and not in the best interests of patients. Its input on the bill had been ignored, it said. “We have no doubt that the NHI Bill will be challenged in the courts, and we are exploring all our options in this regard,” SAHPC spokesperson Simon Strahan.