SA’s largest association of medical specialists has started legal action against the National Health Insurance (NHI) Act, adding to the mounting pressure on President Cyril Ramaphosa to reconsider the controversial legislation.
The SA Private Practitioners Forum (SAPPF) filed its application in the high court in Pretoria on October 1, asking the court to review and set aside the president’s decision to sign the NHI Act into law, and declare it invalid.
This is the third legal attack on the act, which has already been challenged by trade union Solidarity and the Board of Healthcare Funders, a medical scheme industry association.
Several other organisations representing doctors, medical schemes and private hospitals have indicated that they are preparing legal action, while organised business, represented by Business Unity SA, is lobbying hard for Ramaphosa to review the act.
Supporters of the legislation, which sets in motion the ANC’s plans for achieving universal health coverage, say it will create a unified health system that provides all patients with quality health services, regardless of their socioeconomic status. A government-controlled fund will purchase services for eligible patients from accredited public and private facilities, and care will be free at the point of delivery.
Critics such as the SAPPF say that while they support the principles of universal health coverage, the NHI Act is not the way to do it.
“It is important that people know that healthcare professionals are concerned,” said SAPPF CEO Simon Strachan. The SAPPF represents about 3,000 specialists and 1,500 other healthcare professionals, including general practitioners.
The SAPPF has asked the high court to review and set aside the president’s decision to sign and assent to the act on the basis that he failed to discharge his constitutional duties.
It cited the president, the health minister, the finance minister and National Treasury as respondents.
The constitution gives the president only two options after parliament passes a bill: he can assent to it because he is satisfied it meets constitutional requirements, or he can send it back to parliament for reconsideration if he has reservations about its constitutionality.
Since numerous stakeholders and parliament’s own legal adviser had raised concerns about the constitutionality of the NHI Bill when it was before parliament, the president must have been aware of these shortcomings, and signing it was “irrational, for an ulterior purpose, or tainted by the consideration of irrelevant factors,” said Strachan in his founding affidavit.
Election
Among critics that raised concerns about the constitutionality of the bill were the National Treasury, the Board of Healthcare Funders and the Western Cape provincial government.
Ramaphosa signed the legislation on May 15, just two weeks before the general election.
“Shortly thereafter, prominent members of the ANC leveraged on the act as part of their election campaigning, claiming that government (ANC-led) would pay the bill for their healthcare,” said Strachan, referring to Gauteng premier Panyaza Lesufi’s promise that after the election everyone would be able to seek care at any private hospital and the government would foot the bill.
In addition to its procedural attack, the SAPPF has also taken aim at the act itself, and asked the court to declare it unconstitutional and invalid. The act was vague, irrational and unjustifiably limited the constitutional rights of patients and healthcare professionals, it said.
The act was regressive because it would diminish access to healthcare for patients using both private and public facilities, and it would infringe on healthcare professionals’ rights to freedom of trade, occupation and profession, it said.
Vincent Magwenya, Ramaphosa’s spokesperson, declined to comment on the mater, saying the president’s legal team had yet to receive the SAPPF’s papers. “However, as soon as we receive their papers we will respond accordingly,” he said.
The health minister’s spokesperson, Foster Mohale, also declined to comment, on the same grounds.
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