BHF prepares two more NHI legal assaults

One of SA’s key medical scheme industry associations is preparing to launch two further legal attacks on the National Health Insurance (NHI) Act.

The Board of Healthcare Funders (BHF) has already taken aim at President Cyril Ramaphosa’s decision to assent to the legislation. It now plans to launch a Constitutional Court challenge and will separately challenge the constitutionality of its provisions in the high court.

One of SA’s key medical scheme industry associations is preparing to launch two further legal attacks on the National Health Insurance (NHI) Act.

The Board of Healthcare Funders (BHF) has already taken aim at President Cyril Ramaphosa’s decision to assent to the legislation, which he signed into law a year ago.

It now plans to launch a Constitutional Court challenge to the public participation process undertaken by the government in developing the NHI Act and will separately challenge the constitutionality of its provisions in the high court, Werksmans director Helen Michael told delegates to the annual BHF conference in Cape Town.

The BHF’s members, which include the Government Employees Medical Scheme, represent about half of SA’s medical scheme market. The BHF would make the case that the government ignored valid concerns raised over the NHI bill and that the public hearings were “meaningless and flawed”, Michael said.

“Our preparations for this challenge are nearing completion and we expect to file papers shortly,” she said. The case will include a report from FTI Consulting MD Paula Armstrong that shows the NHI is “completely unaffordable”.

‘Will not achieve aim’

Michael did not provide details of the second matter, saying only that the BHF had obtained a report from Wits University’s school of governance professor Alex van den Heever that shows the act will not achieve its aim of universal health coverage.

“The BHF has taken the NHI Act very seriously, bearing in mind the monumental negative impact that [it will potentially] have on fundamental human rights, including the right to access to healthcare,” Michael said.

The act, which has yet to be brought into effect, sets in motion the ANC’s plan for universal health coverage and aims to provide all eligible patients with care that is free at the point of delivery. One of its most controversial proposals is contained in section 33, which prohibits medical schemes from covering benefits offered by NHI.

The act also scales back the provision of free primary healthcare, now available in the public sector to everyone living in the country, to SA citizens and permanent residents only.

The BHF won a small victory in its legal challenge to the president’s assent to the act earlier this month when the high court in Pretoria confirmed it had jurisdiction to hear the matter and ordered Ramaphosa to furnish the record of his decision. He has until Friday to provide the record, but industry sources expect he will seek leave to appeal.

Health minister Aaron Motsoaledi, who is also a respondent in that matter, has briefed a team of 12 advocates, including four senior counsel.