News / Legal Brief
Jun 2,2021
Notwithstanding the attention that has come to be focused on the prevailing COVID-19 pandemic, preparations continue in respect of the implementation and establishment of a National Health Insurance Scheme or NHI in South Africa. In this regard, we are guided by the provisions of the National Health Insurance Bill [B11-1019] (“the Bill”).
Whilst the Bill remains a Bill and is not enforceable as a matter of law, the Bill contains various transitional arrangements, which are set out in clause 57 of the Bill. The transitional arrangements are divided into two Phases. There is arguably not much time within which to substantively achieve the requirements that are described in the Bill for the completion of Phase 1.
In terms of clause 57(2)(a) various tasks are set out in respect of what must be achieved during the course of Phase 1. These particular tasks are described as follows:
“(i) continue with the implementation of health systems strengthening initiatives, including alignment of human resources with that which may be required by users of the Fund;
(ii) include the development of National Health Insurance legislation and amendments to other legislation;
(iii) include the undertaking of initiatives which are aimed at establishing institutions that must be the foundation for a fully functional Fund; and
(iv) include the purchasing of personal healthcare services for vulnerable groups such as children, women, people with disabilities and the elderly.”
It is not clear from the provisions of the Bill how one is to measure the successful implementation of the tasks or initiatives set out in clause 57(2)(a), more particularly, with reference to the relatively vague wording used in the clause. In this regard, if one is to have regard to the wording used in clause 57(2)(a), then one is required to have a clear understanding of, at least, the following concepts:
Clause 57(3) of the Bill deals with what interim committees are to be established to advise the Minister of Health on the implementation of a National Health Insurance Scheme. These so-called interim committees are described as the National Tertiary Health Services Committee, the National Governing Body on Training and Development, the Ministerial Advisory Committee on Healthcare Benefits for National Health Insurance and the Ministerial Advisory Committee on Health Technology Assessment for National Health Insurance. Each of the committees is afforded a mandate in clause 57(3) of the Bill. However, the various committees are described as interim committees in the Bill and are thus intended to be precursor committees to final committees to be established presumably once the Bill becomes an Act.
Clause 57(4) of the Bill sets out certain objectives that must be met during the course of Phase 1 and therefore on or before 31 December 2021. Primarily, the objectives are concerned with the structuring of certain components of the National Health Insurance Scheme, which are arguably designed to create the foundation of such a Scheme. All in all, there are eight objectives to be achieved during the course of Phase 1. These objectives include the following:
Of interest and importance to potential users of the National Health Insurance Scheme is clause 57(5) that contemplates that the objectives that are to be achieved in Phase 2, which is described as operating from 2022 to 2026, must be achieved on the basis of a system of mandatory pre-payment. It is unclear from the provisions of the Bill when a system of mandatory pre-payment by users will be implemented – bearing in mind that the term “mandatory prepayment” is not defined in the Bill. Presumably, in order to achieve the particular objectives, which are included in Phase 2, a system of mandatory prepayment may have to be introduced sooner rather than later, in order to secure the requisite funds prior to the commencement of Phase 2 on 1 January 2022. However, the Bill is largely silent on when the particular steps, contemplated in Phase 1, are to be taken and the consequences, should the time periods stipulated for Phases 1 and 2, not be met as a result of various external factors including prevailing pressure on the Department of Health in order to deal with the COVID-19 pandemic and a successful rollout of an appropriate vaccination program for the entire country.
The Bill remains alive and we should be keenly watching the developments that occur in order to achieve the objectives of Phase 1 ahead of the commencement of Phase 2 during the course of next year. However, there are many i’s to be dotted and t’s to be crossed, from a legal perspective, in order for the Bill to become law, more particularly, a law that is consistent with existing pieces of healthcare legislation and, more importantly, the legality provisions imposed by the Constitution of the Republic of South Africa, 1996 – a process that, within and of itself, cannot be rushed nor manipulated no matter how laudable the objectives of the Bill may be.
More articles: Achieving meaningful access to medicines: a patient-centric approach – the next healthcare debate.
by Neil Kirby, Director and Head of Healthcare and Life Sciences Practice and Helen Michael, Director
NEWS / Legal Brief
Normal retirement age versus agreed retirement ageNEWS / Legal Brief
Derivative misconduct in the workplaceNEWS / Legal Brief
Representation and trade union membership