Provisions of the NHI Bill that grant overweening powers to the Minister of Health could be challenged as unconstitutional, not to mention the fact that the Bill is not consistent with the constitutional rights to equality and human dignity.

An amended version of the NHI Bill was passed by the National Assembly in June and while this version of the Bill did include some amendments, recommendations made by many interested parties, including the private health sector, political parties, trade unions, civil society organisations, legal experts, and others don’t seem to have been considered. Concerns raised by the parliamentary legal adviser appeared to be ignored as well.

As a result, the Bill has come under heavy criticism for being unworkable and unconstitutional resulting in a slew of threats of litigation. Legal experts at Weber Wentzel have said that the NHI bill is an over hasty attempt by the government to completely transform public healthcare, leaving confusion and potential destruction in its wake.

LEGAL CONCERNS

“The spectrum of legal concerns is vast,” said The Institute of Health Risk Managers’ Heidi Kruger. “It includes the constitutionally based concerns, for example, the lack of clarity of the benefits that will be provided by the scheme, because the bill obviously is supposed to progress the States' obligation to realise access to healthcare services in terms of section 27 of the Constitution. And so, without knowing the list of benefits that will be provided is unclear whether these obligations have been fulfilled or as civil rights organisation Section 27 points out it would be unconstitutional to exclude asylum seekers and undocumented people from healthcare services, especially reproductive or including reproductive health services and HIV treatment. Or that limiting the role of medical schemes would violate the progressive realisation of healthcare access. Or denying the right of access to healthcare and freedom of association. All of those may be unconstitutional.” Kruger was speaking during the opening of a recent webinar hosted by The Institute of Health Risk Managers. “Other concerns that have been expressed include things like the potential flight of skills from the country.

The far-reaching powers of the Minister of Health over the proposed single fund and then concerns around quality and many, many more.” Author of The Foundation Principles of South African Medical Law, and The Law of Medical Schemes in South Africa,

Dr Debbie Pearmain addressed the possible constitutional legal challenges the NHI Bill will face during the webinar. “I think a general concern that stretches across the entire proceeding so far is that stakeholders in the private sector feel that they've gone unheard. And I've heard many stakeholders complain that the Parliamentary Portfolio Committee on Health had a very dismissive attitude towards their representations on the Bill.

CONSTITUTIONAL CHALLENGES

“Because the Bill leaves so much to the Minister of Health in terms of decision making about the nuts and bolts of NHI, it's quite likely that we could see constitutional or legal challenges on an ongoing basis to the Bill, as these other regulations and other information emerges because the Bill itself is, at this stage, quite vague,” said Dr Pearmain “It's still, I believe, unconstitutional, but it's not as complete as it would be when there are regulations to explain how the government sees the implementation of the Bill going forward.” Highlighting the fact that the constitutional requirement of participatory democracy has not been observed, HASA (Hospital Association of South Africa) said that approving the Bill without consideration of recommendations and contributions made by participants is deeply regrettable. “During the Parliamentary Portfolio Committee hearings, when a member of BHF (Board of Healthcare Funders) asked the Committee on Health if they’d read their submission, the committee admitted they hadn’t. It's not enough to pay lip service to the process of having hearings and receiving comments, you are supposed to consider them and take them into account. You're not obliged to accept them as government, but if there's been a lack of consideration of comments from key stakeholders then it could be argued that the processing of the Bill is unconstitutional,” Dr Pearmain said.

“Some stakeholders object to the Bill’s approach to asylum seekers and illegal foreigners. This is one of the things that the parliamentary law advisor also raised in her legal opinion that caused such a stir,” said Dr Pearmain. “The rights of asylum seekers and illegal foreigners are restricted by the Bill. Social justice organisations say that key provisions of the Constitution are not reflected in the Bill. Section 27 of the Constitution clearly states that every person has the right to have access to healthcare services, including reproductive healthcare, and no person may be refused emergency treatment. This includes asylum seekers and undocumented persons. The NHI Bill is not consistent with the constitutional rights to equality and human dignity either.

“Furthermore, children’s rights in terms of the Constitution, children of asylum seekers or illegal migrants must continue to enjoy the same level of access to healthcare services as currently provided to them.

The term ‘basic healthcare services’ should be defined and clarified in the Bill. It is not the same as ‘healthcare services’.” Then there are barriers to access of healthcare created by the Bill. “The registration provisions of the Bill may be challenged as unconstitutional barriers to access. Documentation to be provided for registration may prejudice vulnerable persons such as aged persons, the mentally ill etc. Also access to emergency medical treatment is dependent on prior registration with the Fund,” explained Dr Pearmain.

“Referral pathway requirements of the Bill are another barrier to access because they will affect all users and may constitute an unconstitutional denial of care. The Bill is inflexible and makes no provision for users who cannot follow referral pathways.”

WHERE IS THE NHI BILL CURRENTLY?

The Bill must still go through the National Council of Provinces (NCOP). “We don't know what procedures the NCOP will adopt to facilitate participatory democracy and let everyone have their say again, but they are obliged to allow people to have their say in the provinces as well,” said Dr Pearmain. She advised that those working for stakeholders should lookout for opportunities to make their views on the NHI well known to the provincial legislature in which they operate, or to the NCOP, depending on how they decide to conduct the proceedings. One of the biggest complaints about the Bill is that it lacks clarity, which is just one of the reasons SAMA has stated that it does not support the NHI Bill in its present form and is waiting for regulations to be published.

However according to Dr Pearmain: “the regulations are not going to come in the near future because the Bill must be processed through the NCOP and then if all goes well, it goes to the president for assent, that's the constitutional process. So, regulations could take quite a long time to materialise, and they are likely to be done as and when the sections in the Bill are to be activated.”

THE ISSUE OF TIMING

While its clear there are several legal challenges likely, Dr Pearmain highlighted the issue of timing. “I've already made mention of the fact that the Bill is still being processed and, assuming it all goes well in the NCOP, the President must then assent to the Bill,” she said.

“The state law advisor has said that it's constitutional, but bear in mind that the state law advisor has said several other pieces of legislation are constitutional and then the courts have found them not to be. And just the fact that we have another legal opinion from the parliamentary law advisor that doesn't agree with the state law advisor is quite significant. It was clear to me when I read the opinion of the parliamentary law advisor that she had gone back and looked at the submissions, whereas the state law advisor’s legal opinion seemed to just be doubling down on what the state law advisor had already said. The state law advisor didn't, to my mind at least consider what stakeholders were saying and that's why there was such a difference between the two legal opinions,” said Dr Pearmain.

“The President can refer the Bill back to the Constitutional Court if he wants the Constitutional Court to determine its constitutionality, but that's his discretion, he doesn't have to do that. Dr Pearmain explained that the key message was that everyone needed to keep participating in the legal processes: “to make sure that government has no opportunities to say, but you didn't tell us, because that contributes a lot to the success of litigation. If you had an opportunity to make a submission or do a presentation and you didn't, then it does weaken your case a little bit.

Not sufficiently, I mean that the constitutionality of the Bill doesn't depend on whether you made submissions or not, it just goes to show your own integrity as a stakeholder and the fact that you did participate in all the processes throughout which the Bill was taken.”

THE MONEY BILL

“And then also don't forget there's got to be a Money Bill from Treasury,” said Dr Pearmain. “Only the Minister of Finance can introduce a Money Bill. So, they can't bring the NHI Act into operation until there is a Money Bill that supports it. So, that's also something to watch out for, and it must also go through Parliament and be processed by Parliament.

“Until the Money Bill is passed the NHI Act will just lie dormant.”