NHI Act Faces Legal Challenges Over Healthcare Coverage South Africa
Since President Cyril Ramaphosa signed the National Health Insurance (NHI) Act into law in May 2024, eight groups have filed legal challenges. These cases argue that the NHI could reduce access to healthcare services and compromise the quality of care, raising concerns under Section 27 of the Constitution. This section mandates the government to progressively realise the right to healthcare, food, water, and social security.
Sasha Stevenson, head of SECTION27, explains that while the Constitution allows “progressive realisation” given resource constraints, any regression in healthcare access must be fully justified by the government. Litigation focuses on proving that the NHI may limit people’s right to healthcare without adequate justification.
Medical Scheme Members at Risk
Section 33 of the NHI Act limits medical schemes to only top-up services not covered by NHI, alongside mandatory prepayment requirements. This could force many to rely solely on NHI for coverage.
Neil Kirby of Werksmans Attorneys, representing the Board of Healthcare Funders (BHF), argues that this shift may result in people receiving fewer services than under existing medical schemes. He notes that the NHI’s proposed basket of benefits is not fully defined, making it challenging for courts to evaluate claims of reduced coverage.
Dr Nicholas Crisp, NHI lead at the National Health Department, counters that NHI can provide comprehensive services efficiently. Bulk procurement, reduced over-servicing, and prevention of fraud are key to lowering costs while maintaining coverage.
Efficiency vs. Historical Challenges
Crisp highlights that private health providers often over-service patients, increasing costs unnecessarily. The NHI would use capitation for primary healthcare, paying providers a fixed fee per patient to remove incentives for excessive services.
Critics, including Professor Alex van den Heever from Wits School of Governance, remain skeptical. They cite inefficiencies in public health procurement and mismanagement, such as the R2 billion lost at Tembisa Hospital, questioning the government’s ability to deliver coverage better than private schemes.
Healthcare Legislation Challenges and Justifications
Even if litigants prove that NHI limits rights, courts may consider whether the government provided adequate reasons for these limitations. Van den Heever notes that technical evidence explaining Section 33’s restriction on medical schemes is lacking. The Hospital Association of South Africa (HASA) also contends that such restrictions serve no economic or rational purpose, and similar models exist only in a few Canadian provinces.
Crisp defends these restrictions, citing inequities in dual-stream financing and the global prevalence of single-payer systems, though models vary by country.
Public Sector Users and Governance Concerns
The Treatment Action Campaign (TAC) has raised concerns about weak governance in the NHI Fund. SECTION27 highlights deficiencies that could make the system vulnerable to corruption and mismanagement, potentially affecting public sector patients’ access to care.
Conclusion
Legal challenges around the NHI focus on whether healthcare coverage South Africa will regress under medical system restrictions and whether the government has sufficiently justified these legislative decisions. Courts will examine the balance between expanding access, managing resources, and protecting constitutional rights.
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This story was first reported by Spotlight. Read the full article here.
