Neil Kirby, Director and Head of Healthcare and Life Sciences at Werksmans Attorneys

Costs and benefits remain the two key issues facing the coming NHI Act as it faces certain constitutional challenges according to Neil Kirby, Director and Head of Healthcare and Life Sciences at Werksmans Attorneys 

“Neither of those two issues have been clarified to date. Bear in mind this has been a process that has started with the Green Paper, which was this health policy’s general broad brush principles and setting out what we now have distilled into the Act.

“But throughout that process, we don’t know what in fact we’re going to be buying.

“We have no real idea. We have an inkling that it could be primary health care benefits to start. And we know that maternity benefits as a defined benefit along with emergency care benefits are going to be moved into NHI away from medical schemes – so we have an indication but nothing that you can say thank goodness for the NHI,” Kirby said.

He noted that the Act needs to be seen in the context of three primary themes.

“One is the process of bringing this into law. We need to ask if the process has been fair to those involved, and a proper appreciation of the implications for the stakeholders that are interested and affected by this legislation.

“And in that process, have they been heard and have what has been said has been taken into account when putting this all together?”

The second is the rationality approach.

“How much is this going to cost? And can we as a country, whether the cost is R140 billion rand to start with and R700 billion at the end, can we afford it? Can we afford to have national health insurance along with other national priorities and policies that are equally as important as healthcare, education, security and infrastructure?”

The third is the Constitution.

“We need to ask how does this work? Does it work through the lens of the Constitution? The Constitution is the supreme law of the country.

“The constitutionality of this Act is going to be the argument we’re going to have.

“There are going to be two sides to that argument. Certain people are going to say absolutely, it’s constitutional. It’s completely constitutional.

“It solves the problem that so many South Africans face of a lack of healthcare. And then you have detractors, potentially like me, who will say no, no, I think we I think it’s a bridge too far. I think you’ve got too much emphasis in the wrong spots here.

“We’ve got constitutional friction and we need to resolve it,” Kirby said.

Another issue to be faced is that of South Africans being able to choose where they procure their healthcare – and if they can afford NHI and private healthcare.

“There’s no requirement for anyone to join the NHI. You can choose to do that.

“South Africans are required to pay for NHI through a mandatory pre-payment system in exchange for which you receive healthcare services as defined free at the point of care for the services.

“However if you don’t join the NHI are you going to be inclined to pay your medical scheme premium too, which may be too expensive for many people?

It may very well be that you don’t have a choice: you are going to have to join the NHI because you can’t afford both the NHI mandatory pre-payment and the voluntary medical scheme contribution.” Kirby concluded.

ENDS