NHI delay and denial — why the constitutional imperative for universal healthcare will triumph

The constitutionality of National Health Insurance (NHI) is now subjected to judicial review and consequent delays. However, such court processes do not negate the constitutional imperative contained in Section 27 of the Constitution, which provides that everyone has the right to have access to healthcare, and that the state is required to take reasonable legislative measures to achieve progressive realisation of this right. South Africa is a constitutional democracy, and the role of the courts is to test constitutionality and that due process was followed, not to take away the right to healthcare.

The facts that courts cannot ignore today is that South Africa spends 8.8% of GDP on health, yet 51% is spent in the private sector which serves only 16% of the population, and 49% in the public sector which serves 84% of the population. These demonstrate deep structural and systemic inequality in access to quality healthcare. The NHI Act seeks to blend the two-tier system into a unified, single healthcare system that benefits the entire population.

While the implementation of the NHI continues to face hurdles, we should never be found tired in our efforts to remind the public, in the simplest way possible, how this transformative health intervention will unfold.

Key mindset and behavioural changes

The NHI is not just another health policy, it is a huge paradigm shift. The present system focuses primarily on sick people and hospitalisation, while the NHI will focus on health and wellness and disease prevention before people get sick and require admission to hospital. Mindset and behavioural changes are required of all South Africans.

How will healthcare providers be paid?

The remuneration of providers is clearly stated in Section 35 and Section 41 of the NHI Act. At primary healthcare level, to promote prevention, a population-based capitation model applies, whereby services are bought in advance according to the size of the population and not sick people. For hospitals and specialised services the payment method is global budgets and diagnosis-related groups.

How will people register?

People will be required to register at their nearest accredited facility or provider of their choice through a biometric system by providing proof of identity and residence. Illegal foreign nationals and asylum seekers will not be covered except in emergencies or notifiable conditions, to prevent disease transmission, as prescribed in Section 4 of the Act.

How will medicines be supplied?

Approved suppliers will deliver directly to accredited and contracted public and private providers as prescribed in Section 38(6) of the Act.

What will be the role of private providers?

Private hospitals, practitioners and specialists will continue to render services in both sectors, but their services will be offered for free to the population, and providers will be paid by the NHI Fund on behalf of the population, as prescribed in Section 10.

How will the NHI ensure equitable quality?

The Office of Health Standards Compliance will certify facilities for accreditation that comply with minimum standards which will be the same for both public and private, as prescribed in Section 39.

What will happen to medical schemes?

The role of medical schemes will change – they may only offer complementary cover for benefits not covered by the NHI Fund, as prescribed by Section 33. Membership will remain voluntary. Members will still access their preferred accredited private providers for free at point of care, purchased on their behalf by the NHI Fund, as prescribed in Section 6.

Is the NHI affordable and how will it be funded?

The NHI is affordable since it will be implemented in phases based on available resources. The fund will identify benefits to be covered that are within budget. Primary healthcare will reduce hospital admissions drastically. The NHI will be predominantly funded through general tax revenue, supplemented by payroll tax payable by employers and employees, reallocation of medical schemes’ tax credits (currently R34-billion, subsidising the wealthy) and a surcharge on individual taxable income, as prescribed by Section 49.

How will the NHI create jobs for doctors?

Under the present system, the Health Professions Council of South Africa’s (HPCSA’s) Ethical Rule 18 prohibits private hospitals from employing medical doctors. This has contributed to unemployed doctors seeking employment only in state facilities.

Local economic development and implementation

New business opportunities to invest in health facilities in townships and rural areas will be created. Redesigning primary healthcare will create community jobs such as community health workers, health promoters, health educators, home-based care workers and cooperatives. The Act provides for transitional arrangements over two phases based on financial resource availability, as prescribed in Section 57, laying the foundation for universal health coverage.

Delay is not denial

Every major transformation legislation has been taken to court, including sections of the Constitution. The courts tested them, refined them, but never stopped transformation. The same will happen with the NHI. Health is not a commodity but a constitutional right, a public good and a precondition for human dignity. All humanity cherishes the sacredness of life, and everyone deserves access to quality healthcare, irrespective of socioeconomic circumstances.

The judiciary may delay the NHI, but courts cannot deny South Africans their constitutional right to quality healthcare. The NHI is not about politics, it is about dignity. No South African must be denied care because they are poor.

Delay is not denial. The people demand the NHI. The Constitution demands the NHI, and history is on our side. DM