With no accompanying money bill in sight and a landscape ripe for constitutional scrutiny, the act’s journey will probably be tumultuous, says the writer.
Larisse Prinsen
On May 15, President Cyril Ramaphosa signed the National Health Insurance (NHI) Bill into law.
However, its implementation could be stalled for some time. The act is to be implemented in stages. This could take many years if the example of the previous, pivotal piece of health-related legislation, the National Health Act, which took more than a decade to become fully operational, is anything to go by. Each stage will also bring the potential for legal challenges.
There is also the issue of the missing money bill. An act such as the NHI Act, which has massive financial and economic ramifications, should be accompanied by a money bill drafted by the National Treasury, setting out the financial aspects. No money bill has been drafted. Should its implementation proceed without clarification of the rand-and-cent aspects, legal challenges may be brought.
Further pieces of legislation that could be used to combat its implementation include the Consumer Protection Act, which aims to establish and protect consumer rights, such as the right to quality goods and services and to select the supplier of your choice; the Competition Act, which fights against restrictive practices and the abuse of a dominant position; or the Protection of Personal Information Act, which may have implications for the gathering of personal information that will be necessary for the NHI system to be workable.
Another piece of legislation to consider is the Promotion of Administrative Justice Act.
Various constitutional challenges are also rumoured to be in the pipeline, with Solidarity, the DA, the Health Funders Association, the South African Medical Association, the Board of Healthcare Funders, the South African Health Professionals Collaboration, as well as Business Unity South Africa having suggested or declared that they may consider taking legal action.
The NHI Act may be constitutionally challenged on various grounds. To start with, there are concerns regarding the rule of law’s requirement that the law be clear and unambiguous.
The lack of clarity on the benefits and cover has raised many issues. The “What will be covered?” and “Who will be covered?” are unclear. This constitutes vagueness and the uncertainty makes it almost impossible to apply checks and balances whereby a determination may be made whether the state is adhering to its mandate in Section 27 of the Constitution – to take progressive steps to realise the rights enshrined in the Bill of Rights.
Litigation may also be instituted based on arguments that Section 33 of the NHI Act, which may lead to the demise of medical aid schemes, is unconstitutional and limits the constitutional provision of access to healthcare services. Under the limitation clause of the Constitution, a limitation is justified when, among other requirements, there are no less restrictive measures by which the purpose of the limitation may be achieved.
Challenges could also be brought based on non-adherence to requirements of procedural fairness and the principles of participatory democracy, as the consultation processes preceding the enactment have largely been labelled as lip service to consultation requirements without having seriously considered the concerns, objections, submissions and comments, and even blatantly dismissing them.
Other possible causes of action are related to the infringement of the right to autonomy, privacy, association, freedom of expression, as well as freedom of trade, occupation and profession.
The stage is set for many legal dramas to unfold, indicating that the act’s destiny will be decided by gavel rather than a pen. While the ceremonial signing marked a historical milestone in the attempt to promote equality, the road to implementation is fraught with challenges.
With no accompanying money bill in sight and a landscape ripe for constitutional scrutiny, the act’s journey will probably be tumultuous.
As stakeholders gear up to challenge its provisions, the NHI Act is poised to become a battleground where the nuances of law and health-care intersect. The true test of the act’s viability and constitutionality awaits.
* Dr Prinsen is Senior Lecturer in the Department of Public Law at the University of the Free State (UFS).
Cape Times
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