NHI Act: New legal action launched against Ramaphosa and the health scheme

AfriForum has hauled President Cyril Ramaphosa and the ministers of health and finance, Dr. Aaron Motsoaledi and Enoch Godongwana respectively, to the Gauteng High Court, Pretoria to have the National Health Insurance (NHI) Act declared unconstitutional.

Also cited as respondents are National Assembly Speaker Thoko Didiza and National Council of Provinces chairperson Refilwe Mtshweni-Tsipane.

In its court papers, the lobby group states that by centralising the funding of healthcare services and the purchasing of medicines, services, goods and products, the NHI Act undermines the constitutional powers of provinces to budget, finance, plan and run healthcare services.

AfriForum wants the NHI Act declared inconsistent with the Constitution and invalid and Parliament to be given 24 months to amend its defects or repeal it in its entirety and be referred to the Constitutional Court for confirmation of the order of invalidity.

According to AfriForum, the centralisation of the provincial equitable share in terms of the act constitutes an intrusion by national government into the legitimate tax revenues of provinces allocated to the performance of their constitutionally mandated functions in respect of healthcare and ambulance services.

“… These healthcare services are constitutionally and legitimately the domain of provincial governments inclusive of financing (raising and allocating funds), planning, organising and service delivery required for the execution of those services by provincial hospitals, clinics and transport services,” the organisation explained.

AfriForum added that the creation or designation of certain public hospitals as central hospitals in terms of the NHI Act constitutes further legislative encroachment by the national government upon healthcare services rendered by provincial governments.

“In the premise, and to the extent that the act adversely affects the constitutional functional areas of healthcare services and ambulance services rendered by provinces, the act is unconstitutional,” read the court papers.

Additionally, AfriForum states that the NHI Act’s requirement that all users obtain healthcare services exclusively through accredited providers within the NHI network and follow prescribed sequence of access and referral pathways places the future of medical aid schemes and private healthcare at risk and creates financial uncertainty and undermines investment and will adversely affects the economy.

The group also complains that the combined effect of the provisions of the NHI Act will eliminate the present available range of coverage options, substantially narrow the range of healthcare providers that patients may access without prohibitive out-of-pocket expenditure and limit the choices of access by patients to both public and private healthcare service providers and health establishments.

AfriForum believes the government’s endeavour through the NHI Act to take reasonable legislative and other measures to achieve the progressive realisation of the access to healthcare is unreasonable, irrational and infringes fundamental human rights in terms of international law and the Constitution.

It also warns that these measures would result or are likely to result in the deprivation of the rights of persons to enjoy existing quality healthcare services in accordance with their standard of living and adequate for their own health and that of their families through their own private ability and means.

“The adoption of a single-purchaser model in a context of persistent governance incapacity, poor quality of delivery of health services in the public sector and fiscal constraint and questionable affordability of the NHI scheme in terms of the act, renders it improbable that the system can deliver the intended improvement in access to quality healthcare services for all, and does not amount to a reasonable measure in terms of the Constitution,” the group added.

AfriForum further indicated that the NHI Act by restricting the role of medical aid schemes to complementary cover and limiting avenues for patients to exercise choice in accessing care the statute risks diminishing existing entitlements for a significant proportion of the population.

“No proper systematic diagnostic assessment has been made to make a clear connection between the weaknesses of the existing health system and the policy underlying the act’s legislative framework to reform the public and private health sectors,” the organisation told the high court.

The cited defendants have given 20 days to file their notices of intention to defend.

loyiso.sidimba@inl.co.za