OP-ED

The NHI Bill is the best way to attain universal health coverage and health equity

By Narnia Bohler-Muller and Moremi Nkosi 6 June 2021

The Constitution clearly states in the Bill of Rights that access to healthcare is a basic human right. More importantly, the state is mandated to take reasonable legislative and other measures to make this right a reality for all. (Photo by Gallo Images / Foto24 / Bongiwe Gumede)

National Health Insurance is part of our journey towards redressing the injustices of the past and creating a society that is caring and prioritises the needs of the most vulnerable and disadvantaged members of our society.

 

Prof Narnia Bohler-Muller is divisional executive of the Developmental, Capable and Ethical State (DCES) research division at the Human Sciences Research Council (HSRC), a legal and constitutional expert and a member of the Ministerial Advisory Committee on National Health Insurance.

Moremi Nkosi is a senior research specialist in the DCES division of the HSRC focusing on health systems financing reform and health systems research.   

South Africa’s health system is plagued by a legacy of fragmentation and a two-tier structure that continues to be a barrier to the way individuals, households and communities access healthcare services and how they benefit from them.

A diagnostic report on access to quality healthcare in South Africa confirmed that because of the disparities in the distribution of resources between the public and private health sectors, the most vulnerable groups of the population have inequitable access to, and use of, the very healthcare services they need to live a socially and economically productive life.

The corollary of this is that the better-off sections of the population, disproportionately, and unfairly so, benefit the most from our two-tiered health system. This is despite our venerable Constitution clearly stating in the Bill of Rights that access to healthcare is a basic human right. More importantly, the state is mandated to take reasonable legislative and other measures to make this right a reality for all.

This is where the National Health Insurance Bill comes in. The government, through the National Department of Health, first published the bill for public comments in early 2018. Following the public comments process and a number of iterations, the bill was further revised and an updated version was submitted to the Parliamentary Portfolio Committee on Health in August 2019.

As per the provisions of the Constitution, Parliament gazetted the bill for further public comments and also initiated public hearings across South Africa. The committee is holding virtual meetings at which stakeholders who have made written submissions on the bill are making presentations on areas of support, concern and proposed changes. This is a very important process as it allows for the enhancement of the bill to make certain that whatever is promulgated into law by the president is constitutionally and legally sound. The process of public participation is far from over, but we all must appreciate that this is a very important phase in the history and future of our healthcare system, and our country.

So what exactly are the constitutional foundations for National Health Insurance?  

The White Paper on National Health Insurance sets out the policy framework on which the bill is founded — the principles of equity, social solidarity, health as a public good, appropriateness of care and affordability, among others, are intended to create a health system that is integrated, fair and accessible for all South Africans. This is important as it would move South Africa forward on the path towards achieving universal health coverage — a key Sustainable Development Goal target directed at ensuring healthy lives and promoting wellbeing for all people irrespective of their race, gender, age or other factors.

The bill is intended to move South Africa towards this objective — through the creation of a National Health Insurance Fund as a strategic purchaser of healthcare services on behalf of the population and, in so doing, providing South Africans with financial risk protection from the costs associated with accessing and using healthcare services.

However, it is not surprising that a number of stakeholders have indicated resistance and even disdain at the contents of the bill, seemingly oblivious to the fact that rational and sensible comments and suggestions would be taken into account by Parliament to improve its relevance and applicability within our health system. It is striking that not all the concerns raised have a direct bearing on the constitutionality or legality of the bill — with a number of comments raising pointed questions about the state’s capacity to implement such far-reaching reforms, coupled with claims of missing details in the bill which in all likelihood would best be prescribed in regulations.

South Africa is not alone in its efforts to progressively transform its healthcare system into one that delivers universal health coverage in a tangible way. The World Health Organization, of which South Africa is an active member, sees universal health coverage as a means to realise the right to health based on a system of protection that gives everyone an equal opportunity to enjoy the highest attainable standard of health. This requires a human rights-based approach that consistently seeks to ensure that all health policies, strategies and programmes are designed with the objective of progressively improving the enjoyment of all people of the right to health and healthcare.

Our Constitution is testament to the values that all South Africans should espouse, live by and work tirelessly to achieve. In the spirit of Ubuntu, we must all strive to work on leveraging the values and principles enshrined in the Constitution to transform the fragmented and inequitable structure of our health system into one that promotes fair, equitable and accessible healthcare to all.

Interventions to reach this objective adhere to rigorous principles and standards, including non-discrimination, availability and accessibility of services, their social and cultural acceptability, with the full recognition of universality. A human rights-based approach empowers people to claim their rights and encourages policymakers and service providers to meet their obligations in creating more responsive healthcare systems. The National Health Insurance Bill is indeed founded on a human rights-based approach to healthcare, and this is reflected in the preamble as well as Section 2 of the bill, which outlines its purpose. 

Furthermore, the preamble to the Constitution of the Republic of South Africa, 1996, provides for “the need to improve the quality of life of all citizens and to free the potential of each person”.  Section 7 (1) states that the Bill of Rights is a “cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. Section 7 (2) provides that the state must “respect, protect, promote and fulfil” the rights in the Bill of Rights.

In general, the state’s positive and negative duties are set out in Section 7(2) of the Constitution and in relation to healthcare services. This means that government must respect the right of access to healthcare services by not unfairly and/or unreasonably getting in the way of people accessing healthcare services, protect this right by developing and implementing a comprehensive legal framework to enable access to healthcare for all, without discrimination; promote the right by creating a legal framework to realise it; and fulfil the right by creating the necessary conditions for people to access healthcare, through providing positive assistance, benefits and quality healthcare services.

Section 27(1)(a) of the Constitution also states that everyone has the right to have access to healthcare services, including reproductive healthcare. Section 27(2) provides that the State must take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the right of access to healthcare services.

Section 28(l) (c) of the Constitution provides that every child has the right to basic healthcare services, which is a right that is not subject to the limitations mentioned in section 27 or the general limitations in section 36. In addition, Section 35(2) (e) determines that persons detained by the state are entitled (without limitation) “to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment”. Furthermore, the Constitution must be interpreted in terms of the provisions of Section 39(1)(a), namely that: “When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.” Other laws — and in fact the Constitution itself — must be interpreted to bring into effect the values embodied in the Constitution, including dignity, equality, freedom and Ubuntu.

Furthermore, the South African Bill of Rights, through its limitation clause, expressly contemplates the use of a nuanced and context-sensitive balancing of rights, eg, the right of access to healthcare versus the right to freedom of association.

Section 36 provides that the rights in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation;  the nature and extent of the limitation;  the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.

Therefore, the right to choice cannot be unfettered in instances where policy and legal changes are deemed necessary for the purposes of the greater good of the population.

As part of the global community, South Africa ratified the International Covenant on Economic, Social and Cultural Rights on 18 January 2015. The covenant speaks to the right to health and emphasises equal access to healthcare and minimum guarantees of healthcare for sickness. It states that each state party to the covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present covenant by all appropriate means, including particularly the adoption of legislative measures.

The covenant has defined the normative content of the right to healthcare as equal access, based on the principle of non-discrimination, to healthcare facilities, goods and services. These should be available in sufficient quantity; must be physically and economically accessible to everyone; must be ethically and culturally acceptable; and must be of a medically appropriate quality.

National Health Insurance is part of our journey towards redressing the injustices of the past and creating a society that is caring and prioritises the needs of the most vulnerable and disadvantaged members of our society.

Notably, the Constitutional Court has recognised the value of Ubuntu in numerous cases. In S v Makwanyane and another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) Ubuntu was described as follows:

“The concept is of some relevance to the values we need to uphold. It is a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.”

Our Constitution is testament to the values that all South Africans should espouse, live by and work tirelessly to achieve. In the spirit of Ubuntu, we must all strive to work on leveraging the values and principles enshrined in the Constitution to transform the fragmented and inequitable structure of our health system into one that promotes fair, equitable and accessible healthcare to all.

Social solidarity and a caring society must be part of that reform trajectory in a post-Covid world. DM

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All Comments 4

  • Not a word on any of the concerns that we as South Africans should rightfully have:
    1.) How will it be funded?…no the answer is neither stealing the Medical Aid funds nor a wealth tax…and salary tax is shrinking along with the dwindling overtaxed middle class, that is not only finaning the public health system, but their own private one additionally. Too bad that every single SOE is currently in deep debt, and the budget is even more overstretched due to the pandeminc.
    2.) Current level of corruption, especially now after Covid it is clear that our ANC led government does not have the ability to in any way deal with corruption in their midst or indeed in any way can prevent it from happening in the future
    3.) Due to 2.) and the terrible state the public infrastructure is in, the government is unable to fulfil to care for any one right now…
    4.) This decay to the health infrastructure has been happening even though South Africa spends a significant amount on its health system….just extremely inefficiently.
    5.) Then there is the proposal that one may not have additional medical insurance for most medical procedures…nor any real influence on the selection of doctors. Highly questionable ethically.
    6.) Doctors and other medical specialists are becoming scarcer, especially in the neglected ANC provinces, but lately, even JHB is having issues. The NHI would accelerate this process.

    No one is disputing that we need a better public health system, but this is madness.

  • Isn’t it wonderful to know all the jargon and legalese but have no grasp of reality in our country. Most South Africans are very pro National Health, and would love to live in a country where this is feasible. Until our corrupted state pays back enough money and we have enough qualified doctors to enable this glorious scenario we are stuck with a very successful private medical aid system and an appalling state system. Blatantly obvious where the problem lies. Until our populace have more of an understanding of how a country should be managed for their benefit, they will forever vote in the ANC and the status quo will remain.

  • I was under the impression that we already had an NHI, provided by the Provinces under the “direction” of the Dept of Health. The issue must therefore be ONLY to make all access to healthcare 100% equal. Given the unbounded ability of all SA government services to mess everything up, especially in the provision of health, how does anyone justify consigning all health providors to the cess pit which currently does not deliver to the populace? Oh yes – it is the money!! The problem is that more money will not solve the problems – it will take really, really good management & really good skills & really good education. We are a wee way away from having any of those fundamentals even expressed as priorities.

  • The problem with this defence of NHI is that it starts with equity being the main goal, rather than “better health care for all”. The biggest deficit in SA public health is the lack of a comprehensive, close to home, primary healthcare system. Constitutionally mandated access in reality should mean “within walking distance” first and foremost, rather than just “free”. Going for a full service revamp of healthcare rather than a step – wise approach is wrongheaded (especially given the parlous state of the fiscus). Control of the money is the key issue and so the question should be: “how do we best control the funds so as to get the most GP, outpatient – level healthcare for all for our rand”. The state has created three Funds which in part or whole aim to pay for medical expenses (WCA,RAF and GEMS) all three are insolvent and badly managed, with rampant fraud. In addition, the NHI idea that a purchasing unit controlled primarily by a district hospital will purchase from the best, most economical supplier instead of itself is naive in the extreme. The state should contract with the private medical funders (Discovery and the like) to purchase GP – only, outpatient – only healthcare, based on a formulary of allowable tests and medications (not a PMB which is not controllable) for all as a first step. This should be on a fee – for service basis as that system makes Doctors work harder. The funders have the intellectual capital of years of experience in combating fraud/ over – servicing and the trained staff and systems to do this immediately. Doctors will stream to under – serviced areas because of the business opportunity and build “clinics” at their own cost. This will achieve a massive improvement in the care of our big killer diseases (Diabetes, HIV, HT, gastro) and a free benefit of a reduction in complicated cases – and it can be done now! True access to a level of healthcare we (as a near bancrupt nation) can afford will have been achieved. Once our economy grows the state can decide if it wants to add other benefits (more high tech medicine) to the system (or to just upgrade the state hospitals). The first year could even be partially supported by allowing the funders to reduce their reserves temporarily – bridging the gap until this system unloads the hospital – based and inappropriately designed state healthcare system. A doctor and a few nurses with a small surgery in every village and suburb should be the aim. Unleashing the existing skills and systems we have in the private healthcare system is the only way to achieve this.
    Dr Greg Ash

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