NHI charges ahead blindly

The government plans to select a National Health Insurance (NHI) board in 2025 despite multiple legal concerns surrounding the legislation.

Health Minister Aaron Motsoaledi, in his recent responses to Parliamentary questions, said that he intends to introduce the Governance Regulations to the National Health Insurance Act.

These regulations will provide for establishing the structures and processes for the fund’s governance.

This includes the appointment of a Board, Board Committees, statutory Advisory Committees and a Chief Executive Officer.

The recruitment process is described in the regulations and aims to achieve maximum transparency in all steps of the process.

He said the draft regulations will be published in the Government Gazette and on the department’s website in December 2024. 

“The notice will invite the public to submit comments over three months. At the end of this period, the comments will be integrated, and the final regulations shared with the National Health Council,” he said. 

“After that, we will approach His Excellency the President to proclaim the relevant sections of the Act so that the regulations can be published and the recruitment process can proceed.”

He said the steps required in the Act and elaborated on in the draft regulations will take around four months to complete. 

“This means that if all steps progress unhindered, the board should be appointed by November 2025,” he said.

However, this projected timeline may be overly ambitious, as NHI faces significant hurdles to implementation in South Africa.

Since its inception, the government’s NHI scheme has been met with severe criticism, particularly from private sector roleplayers.

Chief among these challenges is legal opposition from various industry stakeholders.

The government’s NHI plan has faced more than just criticism as the legislation is expected to be tied up in court for years, with trade union Solidarity having dealt the first blow.

The Pretoria High Court handed down judgment in Solidarity’s case against the Minister of Health, the President, and the Health Department’s Director General in July this year.

The sections the court declared invalid relate to the legislation’s provision for a “Certificate of Need”, which the National Department of Health wants to adopt to exert more control over where doctors and medical professionals can practice in the country.

In its application for this case, Solidarity argued that the requirement of a certificate of need infringes unlawfully on the right of health practitioners to practise their profession.

Solidarity said that had these sections come into effect, it would have amounted to the expropriation, as it were, of health practitioners’ businesses and their property at the expense of both the practitioners and those who are currently using their services.

This reasoning was validated in the High Court, which ruled that sections 36 to 40 of the National Health Act (NHA), which gives the government power to determine where medical practitioners practise, are invalid and unconstitutional. 

Solidarity CEO Dirk Hermann said this ruling means parts of the NHI are likely illegal.

Chairperson of the Health Funders Association (HFA), Craig Comrie, said earlier this year that the government’s NHI plan, in its current form, will be ineffective and likely unconstitutional if the private sector does not challenge it.

He said the signing of the NHI Bill into law has set the stage for one of the most significant overhauls of South Africa’s healthcare system. 

“As the government embarks on this ambitious plan, the stakes have never been higher,” he said.

“The NHI Act is more than a mere piece of legislation; it stands as a test of constitutional rights and the nation’s commitment to fostering a more inclusive and equitable society.”

Comrie said his concerns about the NHI Act centre around critical questions about the legislation’s constitutional validity, economic feasibility, and potential impact on both public and private healthcare sectors that remain unanswered.

While the President has repeatedly affirmed his belief that the NHI Act is constitutionally sound, he has declined to share specifics on how this conclusion was reached. 

“In response, the HFA will test various aspects of the NHI’s constitutionality, which is crucial for establishing a stable healthcare framework that delivers quality health services for all South Africans,” Comrie said.