Legal Challenges Mounting Against NHI

A number of legal challenges have been launched against the National Health Insurance (NHI), raising concerns about its constitutional validity, potential impact on the private healthcare sector, and financial sustainability. 

While the NHI aims to achieve universal access to quality healthcare for all, it has been widely contested and faced scrutiny even before President Cyril Ramaphosa signed it into law in May last year. We provide a breakdown of the legal challenges levelled against the NHI. 

South African Medical Association 

SAMA is an industry association with a membership of around 17500 medical doctors. 

Sections of the Act they have issues with:

• Section 5: Outlines the registration of users and states that a person seeking health services from an accredited service provider or health establishment must be registered as a user of the NHI Fund. Proof has to be presented to the services provider to secure access to healthcare benefits. 
• Section 7: Outlines services coverage and highlights the rights and responsibilities of users and the operational guidelines for the provision of healthcare services under the NHI. It states that the Fund, in consultation with the Minister of Health, is responsible for purchasing healthcare services for users. The Fund may refuse to cover services deemed medically unnecessary or not included in the approved benefit plan. 
• Section 38: Outlines the health products procurement and focuses on the responsibility of the health products procurement unit which is tasked with determining which health-related products to procure and develop a national health products list. 
• Section 42: Outlines the procedures for lodging complaints, the responsibilities of the Fund in handling these complaints and the rights of affected parties.

SAMA argues that: 

• Patients will be forced to seek care at their registered facility even if the facility is overloaded or incapable of providing appropriate care. There’s no clarity on how patient transfers will be managed.
• South Africa is embarking on a radical overhaul of its healthcare system without even knowing what health services it will offer to patients. 
• Procurement of medical supplies under the NHI remains entirely unclear, raising serious concerns about supply chain management and stock shortages.
• Complaints will be handled by a single, centralised investigative unit within the NHI Fund’s national office. Given the scale of the healthcare system, this mechanism is wholly inadequate for timely or effective resolution of grievances.

The organisation is calling for an amendment of some of the sections in the Act because in its current form, it is not a viable solution for achieving universal health coverage in South Africa. SAMA emphasises the need for inclusive and meaningful representation from healthcare professionals and other stakeholders to ensure the system’s success. It has approached the court to prevent the state from implementing what it calls “a dangerously flawed system that could do more harm than good”.

Board of Healthcare Funders 

The BHF represents more than 40 medical schemes and administrators covering 4.5 million beneficiaries.  

Sections of the Act they take issue with:  

• Section 33: Outlines the role of medical schemes once the NHI is fully implemented. It states that medical schemes may only offer complementary cover for services not included in the NHI benefits package. 
• Section 58: Addresses the repeal and amendment of existing laws to align with the provisions of the NHI Act. 

BHF argues that: 

• Participation in medical aid schemes is voluntary, meaning people pay voluntarily for healthcare services through these entities. You have a right to spend your hard-earned money in the manner you think it is appropriate. 
• The proposed changes under the NHI Act overlook key provisions in the National Health Act  and the Medical Schemes Act. For example, if you’re pregnant and have medical aid, you may not be allowed to use public healthcare services for free; since the NHI would be the sole provider for such services. At the same time, you might also be unable to access maternity care in the private sector, because those services would fall under the NHI and would no longer be covered by your medical aid.

The organisation is calling for an amendment to the NHI Act to ensure it aligns with constitutional principles and protects individual rights. BHF is also requesting the president’s full record of decision making on the NHI. 

Trade Union Solidarity

Trade Union Solidarity represents around 600,000 members in various industries.

Sections of the Act they take issue with:  

• Section 36 -40: Outlines issues around Certificates of Need for health establishments. This requires healthcare professionals to obtain government permission to practice in specific areas. No one may operate a health establishment, increase the number of beds, or open a new health establishment without being in possession of a Certificate of Need. 

Solidarity argues that: 

• It limits the rights of healthcare practitioners from choosing their place of practice.

The union wants these sections of the NHI Act to be declared unconstitutional and invalid.

Hospital Association of South Africa

HASA represents major private hospital groups. 

Sections of the Act they take issue with: 

• Section 4: It specifies the population group covered by NHI. It stipulates that asylum seekers or illegal foreigners are only entitled to emergency medical services. 
• Section 33: Medical Schemes will be restricted to providing complementary cover to services not reimbursed by the Fund.
• Section 49: Deals with the sources of funding for NHI and that the Fund will primarily be funded by money appropriated by Parliament from sources like general tax revenue, payroll taxes and surcharges on personal income tax.

HASA argues that: 

• The Act unlawfully discriminates against asylum seekers by infringing on their constitutional rights. 
• The Act’s restrictions in medical schemes is irrational 
• The NHI Act unlawfully binds the Finance Minister’s discretion in passing money bills. 

The organisation wants the NHI to be set aside because it is “constitutionally invalid and infringes on key provisions of the constitution”. 

South African Private Practitioners Forum

SAPPF represents about 3000 specialists and 1500 other healthcare professionals including general practitioners. 

Sections of the Act they take issue with:

• Section 4: Addresses population coverage, specifying who is eligible to receive healthcare services funded by the NHI Fund. Generally, coverage includes South African citizens, permanent residents, refugees, and specific categories of foreign nationals. Asylum seekers and undocumented migrants are entitled to emergency medical care and treatment for notifiable public health conditions only.

• Sections 36–40:  Regulate the establishment and expansion of healthcare facilities by requiring proof of need and appropriate location, ensuring that new facilities address actual service gaps in specific areas.

SAPPF argues that: 

• The Act in its current form infringes upon the rights to access healthcare services.
• The provisions of the Act are vague and delegate excessive powers to the Minister of Health and the NHI Fund, which could lead to irrational and arbitrary decision-making.

The organisation argues that the NHI Act, in its current form, is unworkable and lacks the necessary operational details to be effectively implemented. SAPPF is calling on the a review of the President’s decision to sign the NHI Act into law and to have it declared invalid – Health-e News