Proposed NHI throws constitutional caution to the wind

Manifested primarily in the 2019 National Health Insurance Bill and the 2017 National Health Insurance (NHI) White Paper, the NHI, by relegating medical scheme coverage to “complementary cover”, is infringing on South Africans’ right to access healthcare. It also infringes on our freedom to associate with whatever service providers they wish and betrays the spirit of the cooperative federalism that underlies South Africa’s form of government.

 Some things are by their nature binary: Pregnancy and death being prime examples. Similarly, something is either unconstitutional or it is not. In the NHI’s case, the scheme brazenly contravenes so many aspects of South Africa’s constitutional order, that it is apt to describe it as very unconstitutional.

 The NHI infringes on the right to have access to healthcare (section 27(1) of the Constitution). The Constitutional Court said in the 2000 Grootboom case that the positive rights in the Bill of Rights – those rights that entitle South Africans to services from government, such as housing, healthcare, education, etc. – are themselves also negative rights. In other words, while government is expected to progressively make possible the right to healthcare, government may not hinder South Africans from themselves giving effect to this right. Thus, government may not stop us from providing our own housing (following the facts in Grootboom), education, or healthcare. Yet, the NHI Bill contains no opt-out clause and clause 33 relegates medical schemes to offering only “complementary cover to services not reimbursable by the Fund”. The NHI impact assessment is more brazen and makes it explicit that with this change, the public and private sectors will be merged into a “unified health system” and the number of medical schemes in South Africa will decline. Millions, therefore, will need to give up their private medical cover.

 This then becomes more problematic. Before you can gain access to healthcare paid for by the NHI – virtually any and all healthcare – you will need to apply for registration with the NHI Fund, the implication being that registration may be refused. From then on, whenever you need to access healthcare services, you will have to present proof of registration – a “healthpas”, like the “dompas” of old. If you don’t have your healthpas on you when you visit the doctor, you will be turned away.

It gets worse. With the relegation of medical schemes to offering only “complementary cover”, private schemes may only cover those ills or conditions that the NHI Fund does not purport to cover. Clause 7(3) of the NHI Bill also allows people trying to access health services to be turned away if, among other things, there is “no medical necessity” or “no cost-effective intervention” available. 

 Imagine the following situation: the NHI Fund purports to cover treatment for skin cancer which bars medical schemes from doing the same. X is diagnosed with skin cancer and goes, healthpas in hand, to an NHI-accredited doctor. After an assessment, the doctor concludes that there is no “cost-effective” way to treat X’s particularly serious type of skin cancer and refuses her treatment. Even as a paid-up member, X’s private medical scheme could then not legally offer to pay for her “cost-ineffective” treatment, leaving X without access to any healthcare – a guaranteed right under the Constitution.

 The NHI also infringes on the right to freedom of association in section 18 of the Constitution, for many of the same reasons. Millions of South Africans have consciously opted out of State healthcare by acquiring private medical scheme packages, health insurance, hospital plans, and going to private hospitals. If the millions more who are poor could afford to do the same, they too would flock away from the collapsed public healthcare system. This is how freedom of association works: Every South African must be free to decide for themselves which people, institutions, or service providers they wish to associate with. The NHI forces everyone back under the State’s direct control.

Finally, NHI is fundamentally at odds with South Africa’s cooperative federal form of government. Health services are an area of concurrent national and provincial competence mentioned in Schedule 4 of the Constitution. According to section 146, national legislation – in this case, the would-be NHI Act – can only prevail over corresponding provincial healthcare legislation: if healthcare can be effectively regulated solely at the national level, if healthcare requires uniformity across the country; if the national legislation is necessary to maintain national security, economic unity, protect the common market, promote interprovincial economic activity, or promote equal access to government services; or if the national legislation is aimed at preventing unreasonable action by a province. The NHI scheme does not claim to do any of these things, meaning provincial legislation must prevail over the NHI.

 The Department of Health has paid no mind to these constitutional concerns and is pressing ahead with the NHI scheme. The Constitution and the Rule of Law are meant to protect South Africans from the excesses of government power, particularly when government is doing something seemingly popular. It is time for all South Africans concerned with maintaining their health and having access to the right treatments whenever necessary to rally around the Constitution and insist that their rights to choose their healthcare be respected.

Martin van Staden is Head of Legal (Policy and Research) at the Free Market Foundation. He is pursuing a Master of Laws degree at the University of Pretoria and is author of ‘The Constitution and the Rule of Law: An Introduction’ (2019).

This article was first published on Med Brief Africa on 27 November 2019

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