A key industry association for medical schemes has launched a fresh legal attack on the National Health Insurance (NHI) Bill, taking aim at President Cyril Ramaphosa’s decision to sign the contentious legislation into law.
The Board of Healthcare Funders (BHF) action follows hard on the heels of that of trade union Solidarity, which last week filed legal papers seeking to have the act declared unconstitutional. BHF took a different approach, honing in on president’s powers and responsibilities when he considers whether to sign bills.
The NHI Act, signed by the president two weeks ago, sets in motion sweeping reforms aimed at achieving universal health coverage.
Proponents of the act envisage a unified health system in which a government-controlled fund purchases services for eligible patients that are free at the point of care in both public and private facilities.
Critics, including the BHF, have said that they support the principles of NHI, but the act is unworkable, unconstitutional, and unaffordable.
“Our goal is to right what we think is wrong in the act,” BHF MD Katlego Mothudi said.
“We do want universal health coverage, but we need to make sure it is fit for purpose. Our health system is not in a great position. The act will not achieve that which is intended (by government),” he said.
The BHF represents 40 medical schemes operating in SA, covering altogether 4.5-million beneficiaries, or about half the total medical scheme market. Its members include the Government Employees Medical Scheme, which has about 2-million beneficiaries.
Decision-making
In legal papers filed on Monday, the BHF asked the high court in Pretoria to review and set aside the president’s decision to assent to and sign the NHI bill, and declare that the act has no legal force. It cited the president and the health minister as respondents, but focused its legal attack on the president, asking for a full record of his decision-making on the bill. These records are expected to show the president received several submissions advising him that the bill was unconstitutional, and explain the basis on which he disagreed with these submissions and concluded he had no reservations about the constitutionality of the bill before he signed it, Mothudi said in his founding affidavit.
The constitution provides the president with only two options after parliament passes a bill: he passes the bill because he is satisfied it meets constitutional requirements, or he refers it back to parliament for reconsideration if he has reservations about its constitutionality.
The president has no other options: he cannot refuse to sign on policy or political grounds, Mothudi said.
Many parties — including the BHF, the National Treasury and the Western Cape provincial government — for years raised concern about the constitutionality of the NHI bill, he said. Among measures critics say are unconstitutional are its restrictions on the future role of medical schemes, and provisions that sharply diminish the role of provincial health departments.
“It should be readily apparent from the record and advice that the president received how (he) reconciled himself with these concerns and (presumably) concluded that he held no reservations about the NHI bill’s constitutionality. If the record does not reflect this to be so, then the president’s assent to the NHI bill was unlawful and in violation of the constitution,” Mothudi said.
The BHF participated in the public consultation process leading to parliament’s adoption of the bill, and petitioned the president to send it back for reconsideration, but its request, like many others, was ignored, he said.
The president did not reply to the BHF or provide any reasons to the public explaining why constitutional concerns raised by the BHF were of no concern, he said.
The president’s spokesperson, Vincent Magwenya, declined to comment, saying the president’s legal team had yet to receive the BHF’s papers.
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