The Treatment Action Campaign (TAC) is seeking to intervene in the SA Medical Association’s (Sama’s) legal challenge to the National Health Insurance (NHI) Act, saying it wants to bring in the perspective of patients who rely on the public health system.
The TAC has been at the forefront of HIV/Aids activism in SA for more than two decades, and previously used the courts to compel the government to provide antiretroviral therapy to HIV-positive pregnant women to prevent the transmission of the virus to their babies. Sama is SA’s biggest doctor organisation and one of six parties contesting the NHI Act, which it has asked the high court in Pretoria to declare unconstitutional and invalid.
The TAC has applied to join Sama’s case as an amicus curiae (friend of the court), arguing that its repeated warnings that the act would have a detrimental effect on people who relied on the public health system had been ignored. It had made detailed submissions at every step of the policy and legislative process, to no avail, TAC general secretary Anele Yawa said in papers.
TAC said it would focus on three legal arguments if its application is successful. These include the lack of transparency and public participation provisions in the NHI Act; the weak governance structure of the board of the NHI Fund; and the regression in universal health coverage for people who depend on the public health system.
NHI is the ANC’s plan for universal health coverage, and envisages sweeping reforms to the way healthcare is financed in SA. The act, which has yet to be implemented, paves the way for a government-controlled NHI fund that will purchase healthcare services from accredited service providers for all eligible patients.
Given the scale of the contracting that is to be undertaken by the fund, it is crucial that its activities are transparent and open to public scrutiny, said the TAC’s legal representative Sasha Stevenson, executive director of public law advocacy group Section 27.
Without strong governance structures and processes, the NHI Fund would be inefficient, susceptible to corruption, and in all likelihood fail to deliver, Yawa said. The people at greatest risk from these failings were those who could not afford to buy their way out, he said.
The NHI Act’s provisions for asylum seekers, undocumented migrants and Southern African Development Community nationals who enter SA illegally were regressive and at odds with the constitution and the National Health Act, he said. These groups are now entitled to free primary health services, free healthcare for pregnant women and children under six, and hospital services that may be subject to means-tested fees. The NHI Act limits their access to emergency health services and notable conditions of public health concern.
The NHI Act thus undermined SA’s fight against HIV/Aids and was at odds with the government’s strategic plan for combating the disease, Yawa said.
Health minister Aaron Motsoaledi responded with conditional consent, agreeing to the TAC being admitted as amicus in principle, but only if its submissions were curtailed. The arguments and evidence it proposed bringing before the court were better suited to that of a co-applicant as they went beyond the issues Sama had argued in its application, said the health department’s deputy director-general Nicholas Crisp in court papers.
“The TAC’s overall partisan position, which it espouses unashamedly, is better suited to making it a litigant rather than a friend of the court,” he said. By supporting Sama’s bid to set aside the legislation, the TAC had adopted a “narrow and one-sided approach” that promoted the interests of the private sector at the expense of the public sector”, he said.
The Health Funders Association, an organisation for medical schemes that has launched its own legal challenge to the NHI Act, welcomed the TAC’s intervention.
“It strengthens the voice of civil society in ensuring that the constitutional flaws of the NHI Act are fully ventilated before the court. The outcome of these proceedings will shape the future of healthcare in SA and it is crucial that all perspectives are heard,” it said.
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