A slightly amended version of the NHI Bill first introduced in 2019, will be debated in the National Assembly on 13 June 2023, before being referred to the National Council of Provinces, and about a year before the 2024 national elections. If you are concerned about how you, your family, colleagues, and friends will access medicines under NHI in the future, this debate is critical.  

‘Version B’ of the NHI Bill, which will be the subject of the debate, follows on from the version first tabled in Parliament (‘Version A)’. Version A elicited thousands of public submissions, and frankly, involved a rushed and controversial Parliamentary deliberation process. Remarkably, there were two differing legal opinions about it (State Law Advisor, Parliamentary Law Advisor). Version A was then amended, resulting in the new Version B. Opposition parties including the DA, EFF and FF+ ultimately rejected Version B on 24 May 2023. The ANC voted in support of the adoption of Version B of the NHI Bill. 

Key amendments in Version B include a few deletions, some instances of the curtailment of ministerial discretion and powers, the involvement of Cabinet in key appointment decisions — including the appointment of the CEO of the NHI Fund, the NHI Board members and Chairperson, and the members of the Appeal Tribunal (s19, 13,14, 44 respectively). There is also now the inclusion of additional requirements on managing the conduct of and dealing with the disclosure of interests among members of technical Committees established by the Board (s23) and also Advisory Committees established by the Minister (s28), and shorter Appeal Tribunal decision outcome timelines (now 90 days, formerly 180 days, s47). Also somewhat useful is a handful of new definitions, new expanded (and clearer) language on the Competition Commission’s enforcement ambit (s3), and the inclusion of all children, irrespective of nationality to access ‘basic health care services’ (s4) (now defined too), and finally an amendment to the distinct phases for NHI’s introduction in our country (now phase 1 as 2023-2026 and phase 2 as 2026 – 2028).

Basically, Version B is being debated at a time when confidence and trust in national and provincial government departments are worryingly low post-pandemic, amidst growing xenophobia in state health facilities, paralysing allegations of corruption in government procurement, a health care delivery system in crisis also due to unmanageable levels of rolling blackouts, and more importantly, growing evidence of health products procurement corruption in multiple provinces. 

Our political and socio-economic context matters and it explains the growing scrutiny of the health department and the governing party’s lawmakers and others in Parliament from, on the one hand: patients, civil society groups, academics, researchers, health workers, unions, faith organisations, and on the other hand: private health groups, medical schemes, pharmaceutical companies, health professional associations and opposition political parties. The diversity of political views about the future of NHI and health coverage, as well as the role of government and the role of the private sector is clear, if not overwhelming. 

Railroaded process

Regrettably, no single sector is really being listened to with a view to strengthening the NHI Bill, which does not bode well for government and here, the health department, who are likely to face differing and multiple decades-long legal challenges if the NHI Bill is passed and then assented to later this year by the President. 

With each interest group pushing their own political vision, agenda or privilege, and preferences for the future of health care in South Africa, there is also a reluctance by the state to engage on some very legitimate and substantive system design concerns, marked at times by a defensiveness that risks losing allies, and partnerships. It also ironically risks further fragmentation, uncertainty, chaos, and funding gaps by not listening to many health equity experts who are sounding warning shots about the lack of details, gaps, and difficulties when it comes to the future of our health in South Africa, and in this case, our future ability to access medicines. 

For the Health Justice Initiative (HJI), a key health rights and health access issue (under any health system) is whether a rich and poor person can access the same life-saving medicine, at the same and right time, for the same condition, at a price that is affordable and transparent through the state’s negotiating power (the public health sector serves about 85% of people). Timely and affordable access can avoid premature death and suffering and improve public health outcomes. 

Lack of equity

In our work at the HJI we therefore focus on medicine access, pricing, and regulation. Our comments in 2022 on Version A of the NHI Bill focused on this aspect, where we asked 17 specific questions on the provisions in the Bill that are meant to govern, unify, and regulate our current parallel medicine selection, pricing, procurement, and access systems. 

In our 2022 comments we observed that: “The entire shift of our medicine selection, procurement, and reimbursement system to ‘NHI reimbursement’ has not been adequately thought through, potentially posing a significant risk for the future of medicine selection and access in the country for all people. This requires immediate attention at the highest levels of the executive and the legislature too — and needs a multi-department and stakeholder technical group to urgently determine the exact trajectory of this planned process.”

Yes, the NHI has been a long-held promise of the democratic government of South Africa dating back to ANC health policy commitments, even pre-1994. It is and was always meant to be a noble and necessary effort to unify South Africa’s grossly unequal two-tier health system created by apartheid, but cemented in parts, post-1994. It should have been prioritised in 1994, but it was not, giving way for the continuation of a grossly unequal parallel health system, only partly regulated. There are other reasons for the latter too. But it has taken the government nearly 25 years to approve a policy and introduce a Bill to give effect to an aim that no one will publicly disagree with: universal health coverage — where all patients and the very sick benefit from the best medicines and care science has to offer, not just the rich or the employed, at the same time to give effect to not just our Constitution but also better public health outcomes. But this is exactly what the NHI Bill does not do, as currently drafted.

The national assembly during President Cyril Ramaphosa’s State of the Nation Address when the President stated, ‘In advancing the health and the well-being of South Africans, we must do everything we can to ensure that no person is left behind’. (Photo: Daily Maverick/Leila Dougan)

Despite government efforts since 1994 to regulate which medicines enter the system, when and at what price, South Africa at present has at least two starkly different systems for patients who want to access medicines, resulting at times in different prices for the same medicine and also unequal access across health sectors. Meaning that at times, state patients are unable to access medicines that the private sector offers even if they need it for improved health, and at times, private patients, like state patients, are unable to access newer and life-saving treatments available elsewhere in Africa or beyond, because of exorbitant and unregulated private sector prices, set in large part by the pharmaceutical industry (with no material commitment by multiple government departments that have the power to take action to reduce medicine prices or ensure timely generic entries). 

Here the state alone is not to blame, vested interests too have also not helped to ensure proper regulation, insisting on continued commodification of medicines, pushing back against global price transparency and benchmarking, and pushing for an unregulated market for medicines. NHI was meant to comprehensively address that and put an end to piecemeal medicine regulation and unequal, unaffordable and untimely access. Unfortunately, in relation to medicine selection, procurement, pricing and access, the provisions of Version B of the NHI Bill remain confusing and are unclear as to the precise mechanics of merging our current and parallel systems to ensure broad medicine access. While it pretends to unify healthcare and coverage and expand it for all ‘South Africans’ (or documented ID holders per the NHI Bill’s definition of a NHI ‘user’) — Version B on closer examination enables at least four parallel systems for medicine access for ‘users of health services purchased by the (NHI) Fund’. 

Version B (Section 6) effectively enables: 

• SA ID holders (including refugees and all children) to access services and medicines selected by the state under NHI (a Health Products Procurement Unit located in the NDoH will procure medical products including medicines, on the advice of multiple Advisory Committees, including the advice of the Benefits Advisory Committee and the Health Care Benefits Pricing Committee (s 25 and 26) (funded by, among others, a payroll tax, surcharge on personal income tax, general tax revenue (s49).

But here is where it gets interesting and at times confusing — Version B of the NHI Bill also allows for: 

• People with ‘complementary voluntary medical insurance scheme’ membership (read as: medical schemes) to purchase services including medicines not covered by NHI — at an additional cost
• Workers and students that are ‘international travellers’ with a ‘short-term visa’, to purchase services including medicines not covered by NHI — at an additional cost and via ‘private insurance’
• the purchase of medicines and services through out-of-pocket payments where top-up scheme membership benefits are depleted or not in place (actually, such payments are generally considered a regressive form of financing, especially in a country with such high levels of income and wealth inequality).

Notice the use of the word ‘insurance’ in the NHI Bill — an approach to funding healthcare that as a country we have spent nearly 25 years trying to move away from!

So effectively, in many respects, the NHI Bill represents the status quo in South Africa and risks further fragmentation. Far from equalising access in a radical or systemic way, for a long time still, the NHI will enable and permit the possibility of wealthy people and the employed ‘buying up’. And here is where it hurts the most: Serving and retired Members of Parliament (MPs), Ministers, the President and Deputy President, Judges and others who belong to Parmed will always (even under NHI) be permitted to ‘buy up’: they will not be restricted to using only the basic medicines and health services that the NHI determines is necessary.  

Because the State Security Agency (SSA) and the South African National Defence Force (SANDF) are exempted from the ambit of the NHI Bill, they will have their own medicine access system, in parallel to the above, but there are no details on how they will select and access medicines. The SANDF participates in the State medicine tender system and accesses medicines listed on the essential medicines list. There have been instances (most recently in the Covid-19 pandemic) where they acted on their own and in parallel to the State’s selection, which sets a negative precedent and perpetuates the fragmentation of health services even further. 

It is also unclear how medicine selection, procurement, pricing, and access outside of the NHI will be governed, managed, and regulated, or even aligned, given provisions that allow medical schemes and medical insurance products to continue indefinitely. The pricing structure for non-NHI medicines urgently needs attention. This is because according to the NHI Bill: Medical Schemes will continue for some time but once NHI ‘…has been fully implemented as determined by the Minister … medical schemes may only offer complementary cover to services not reimbursable by the (NHI) Fund’ (s33) (like a top up). And ‘international travelers’ (work and study related) must have ‘insurance’. 

Separate from this are some process concerns and issues around reimbursement by the state — anecdotal reports suggest that here in South Africa the Department of Health’s delayed reimbursement to independent private pharmacies for Covid-19 vaccines has affected their confidence levels in prompt state reimbursement under NHI. If this is not addressed, there could be a truly brief list of health providers willing to take on service provision for the state for NHI, at a premium, or worse, health service provision could be interrupted due to reimbursement delays. Ghana is experiencing something similar at the moment. 

Not what was promised

So far from creating equal, fair and affordable medicine access for all, right now, and quite contrary to the narrative of government officials and ANC lawmakers, the NHI Bill and the system it proposes for medicine access for the next few decades is actually confusing, often unclear, and very far off the social solidarity mark it promised: it is too preoccupied with documentation at the risk of public health need (pandemics and health emergencies know no borders) and risks entrenching the status quo even further, by enabling at least four unclear, differently operated and parallel systems for medicine access, meaning that wealthier people (including our MPs) will still be able to bypass NHI selection and purchase more expensive life-saving and other medicines on their own/with others where the State does not procure these — except if you are undocumented and/or poor, in which case you risk losing access altogether to any avenue for healthcare (save humanitarian).  

This is why as the HJI we argue that the debate in Parliament must at least consider: 

• Specific measures to enable and promote public transparency related to medicine selection, procurement, and contracting processes under the NHI, irrespective of the system it is being procured under (here, at least four).
• Improved transparency and mandated sharing of all deliberations of NHI Board and Ministerial Advisory Committees — who will have millions of people’s health in their hands. We need to ensure that NHI prescribes by law that they must publicly disclose any conflict of interest between their professional work, paid consultancies, and their duties on these committees.
• The need for explicit provisions on how selection decisions and prices on medicines not covered under NHI will be decided. This involves figuring out how the current medicine pricing system (called ‘Single Exit Price’) that governs private sector medicine acquisition will be amended and/or extended. And whether this will also include medicines selected outside of NHI. For example, will there be a non-NHI special Medicine Pricing Unit, what will its mandate be, who will appoint it, how will it be governed, etcetera? Simply put, medicines are not the rich persons’ caviar or jewellery, one cannot rely on the market alone for access.
• The mechanisms for the regulation of the price of medicines both in and outside of the NHI, with at the very least, a reliance on international benchmarking, law reform, and a suite of policies that can drive down prices (this includes Competition and Intellectual Property law reform, and enforcement). Or else, we face a medicine access, selection, and pricing crisis. If the ANC is willing to put its weight behind the important need for Universal Health Coverage via NHI, it should be bold enough to also take on the practices of suppliers, and pharmaceutical companies. Doing that only after implementing NHI or not at all, screams hypocrisy.
• How exactly the NHI Fund will negotiate with global pharmaceutical manufacturers and suppliers to procure for the State, and how that process could be transparent and accountable, because after all, this involves public funds. This is important given the secrecy and non-disclosure agreements demanded by pharmaceutical companies even during Covid-19 (which HJI is challenging on 24 July in the high court) and because of South Africa’s evolving preferential procurement framework.

Finally, it is clear that we need a fair, unambiguous, equitable, single-medicine pricing system for South Africa. The NHI Bill being debated this week does not give us that. And while there is local and global goodwill to help ensure that the future of medicine access is not further fragmented in South Africa or placed in jeopardy, the question remains: is our government willing to pause, genuinely listen and course correct? DM  

For additional resources please see: https://healthjusticeinitiative.org.za/national-health-insurance-nhi/

Fatima Hassan is the Founder and Director of the Health Justice Initiative, and a human rights lawyers and social justice activist. The author would like to acknowledge the contributions of Professor Fatimah Suleiman and Andy Gray at UKZN for reviewing an earlier draft. 

T: @_HassanF and T: @HealthJusticeIn