The NHI Act is part of government’s plan for free universal health coverage that will provide quality health services for all.
The Private Practitioners’ Forum is also disputing the constitutionality of the National Health Insurance (NHI) Act in court and has filed its application in the Pretoria high court asking the court to review and set aside the president’s decision to sign the NHI Act into law and declare it invalid.
The Board of Healthcare Funders and trade union Solidarity are already challenging the constitutionality of the NHI Act, while many other medical organisations are also getting ready to do the same.
The South African Private Practitioners’ Forum (SAPPF) represents about 3,000 specialists and 1,500 other healthcare professionals, such as general practitioners. The SAPPF and other organisations all expressed their support for universal health coverage, but do not believe that the NHI Act is the way to achieve it.
President Cyril Ramaphosa signed the NHI Act into law just before the election, but according to reports in City Press on the weekend, Â Democratic Alliance ministers and Dr Aaron Motsoaledi, minister of health, were involved in a heavy argument during a cabinet meeting last week which ended in Ramaphosa instructing that the implementation of the NHI Act be postponed for further negotiations.
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NHI Act: should the president have sent it back to parliament?
According to the SAPPF’s founding affidavit made by its CEO, Simon Strachan, the respondents in the case are the president, the ministers of health and finance and National Treasury.
The SAPPF says according to the Constitution the president has only two choices after parliament passes a bill. He can assent to it if he is satisfied that it meets the constitutional requirements or he can send it back to parliament for reconsideration if he doubts that it is constitutional.
As parliament’s legal adviser and various stakeholders expressed concerns about the constitutionality of the NHI Bill, the SAPPF says the president must have been aware of the NHI Bill’s shortcomings and therefore singing it was irrational, for an ulterior purpose or tainted by the consideration of irrelevant factors.
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Constitutional issues about NHI Act
The SAPPF raises these constitutional issues:
- Whether the president’s decision to assent to and sign the NHI Act was constitutional and specifically whether he had or ought to have had reservations about the constitutionality of the NHI Bill and should have referred it back to parliament and if he acted rationally in assenting to the Act
- Whether the NHI Act is constitutional, specifically whether it is impermissibly vague, delegates plenary powers to the minister of health, the board of the National Health Insurance Fund and various committees and is irrational
- Whether the NHI Act as a whole, alternatively sections 5, 7, 8, 33, 35, 37, 38, 39 and 41 of the NHI Act unreasonably and unjustifiably limits the rights to dignity, freedom and security of person, freedom of trade, occupation and profession, property and access to healthcare in the Bill of Rights and
- Whether the NHI Act constitutes a reasonable measure to progressively realise the right to access to healthcare in terms of section 27(2).
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NHI Act unable to achieve its aims and purpose
The SAPPF says in the founding affidavit that at its core, the NHI Act is unable to achieve its stated aims and purpose and contains little that can be operationalised to achieve the purpose of implementing an NHI scheme.
Yet, simultaneously, the SAPPF says, the NHI Act has far-reaching and invasive infringements of a number of key constitutional rights, while it also limits the rights of patients in the private as well as the public sector whose ability to receive quality health care will be compromised by the Act. Providers of healthcare will also be placed under immense regulation and constraint in terms of the Act.
National Treasury, the Board of Healthcare Funders and the Western Cape provincial government also raised concerns about the constitutionality of the Act.
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Busa preparing proposal detailing solutions
After Business Unity South Africa (Busa) and various other organisations refused to sign the Presidential Health Compact, Busa met with the president and he requested Busa to prepare a proposal detailing solutions to address its concerns as a basis for further engagement with government.
Busa said its primary objective is to render the NHI Act workable, affordable and implementable while advancing universal health coverage and ensuring an equitable healthcare system for all.
Cas Coovaida, CEO of Busa, said businesses, healthcare providers and a wide range of stakeholders have consistently supported the goal of universal health coverage but have raised concerns about the NHI Act’s potential impact on healthcare, taxpayers, the economy and investor confidence.
