NHI Bill and the constitutional hurdles
‘The need for a better healthcare system for all South Africans is nowhere in dispute, but the idea that members of the private system will have no choice but to be served by the dysfunctional public system is, well, heart-stopping.’
This is the opinion of Business Maverick editor Tim Cohen, who believes the debate about a single national health insurance system rests on two contradictory arguments.
Government argues SA’s current total healthcare expenditure is massively skewed. While the private sector system spends about R20 000 a year per person on healthcare, which serves 15% of the population; the public system is funded out of the budget and comes to about R4 000 a year per person for the remaining 85% of the population.
For proponents of National Health Insurance, the solution is easy: merge the two systems and distribute the money evenly.
However, proponents of the private system argue that what people pay for private healthcare is their own personal choice. It's their money. They spend it on what they want. They are paying for a high-quality product, which they may not be prepared to pay if it were provided on the ‘deleterious’ standard of the public system.
While this debate remains unresolved, lawyers are involved in the constitutional issues surrounding the implementation of NHI.
The first concerns the provinces’ jurisdiction over healthcare implementation, as the NHI fund effectively centralises the provision of healthcare to the national government. The second problem concerns the constitutional protection of freedom of association.
Werksmans Attorneys’ Neil Kirby notes the NHI Bill proposes a fund to purchase healthcare services. While it does not contain a clause that compels anyone to belong to the fund, clause 49 outlines the chief sources of income of the fund as general tax revenue, payroll tax and a surcharge on personal income tax.
So while South Africans will not be paying a ‘membership fee’, they will be forced to pay income tax to provide income for the fund. However, Kirby notes that section 18 of the Constitution states that all South Africans have the right to choose with whom to associate – including whether or not to belong to a National Health Insurance Fund.
Kirby adds: ‘Whether or not mandatory membership of the fund is desirable will have to be tested against section 18 of the Bill of Rights. There are important constitutional considerations to take into account when evaluating the overall impact and effect of the NHI Bill on the current architecture of, at least, the private healthcare sector in SA.’
A different take is offered by Dr Kaymarlin Govender, a research director at HEARD at the University of KZN.
‘If we are to adopt a universal and inclusive system ... we are setting ourselves up with the almost impossible task of trying to fix a broken public healthcare system while simultaneously working to re-engineer a new one,’ he says.
He believes there is an imperative for SA to align with WHO and UN declarations on universal health coverage.
In another analysis on the Daily Maverick site, Govender points out that as the district health system is the basic unit of analysis in healthcare reform, the most urgent task is to fix health service delivery at local level.
‘Universal health coverage will remain an empty promise unless local health systems are strengthened to improve quality essential services to everyone. The irony is that without an equitable and inclusive healthcare system, the long-term cost control to both the public fiscus and current private sector users would be impossible to contain.’
Govender believes the dual model system in SA is neither desirable nor sustainable.
‘Ultimately, South Africans must decide on the type of fiscal commitments and structural changes required to eliminate disparities in access to healthcare. The government needs to set up a process of engagement with diverse stakeholders on details contained in the Bill. We require transparency, accountability and decisions based on sound evidence.’
© Juta and Company (Pty) Ltd 2016
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