The National Health Insurance (NHI) scheme is now law but opponents of the Act are not accepting it. The threat of legal action was very real even before the president signed the NHI Bill into law last week. 

Those who are challenging the Act say they support the concept of universal health coverage envisioned by the NHI. But in its current form, the Act doesn’t sufficiently provide universal health coverage. 

The Board of Healthcare Funders (BHF), which represents numerous medical aid schemes, argues the NHI Act is unconstitutional. The organisation says it will be instituting legal proceedings to challenge parts of the Act. 

BHF managing director Dr Katlego Mothudi explains to Health-e News which sections of the Act the organisation takes exception to: 

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Section 33 says that once the NHI Fund is fully implemented, medical aid schemes will no longer be allowed to provide similar services. There are a few issues around that. 

One is that the participation in medical aid schemes for a larger part of the participants is actually voluntary, which means that they pay voluntarily for healthcare services through these entities. And we think that if somebody is willing to do something voluntarily and you forbid them to do it, you are infringing on their rights. You have a right to spend your hard-earned money in the manner that you think is appropriate.

Second, we believe as well that, at the moment, schemes do afford their members better access than what is currently available in the public sector. So if you’re going to ask them not to provide these services you are actually denying their members access to healthcare services which goes against the constitution – everybody has a right to access these services. 

There’s also constitutional issues pertaining to certain provisions such as maternity services. 

In 1995 former president Nelson Mandela made a pronouncement about free healthcare for children under 6 and pregnant women. However, both the Medical Schemes Act and National Health Act are very specific that this free healthcare is only available to people who are not on medical aid. So if you’re on medical aid you have to pay for healthcare services even in the public sector. 

In section 58 of the Bill there is a proposed amendment to the Medical Schemes Act, there are two relevant amendments. The first one is in terms of the definition of the business of a medical scheme and secondly the definition of relevant healthcare services. These proposed changes ignore the clauses in the National Health Act and the Medical Schemes Act. As a result, if you become pregnant and you’re on medical aid you won’t be able to access free healthcare services in the public sector. And you won’t be able to access maternity services in the private sector anyway because they will be available under the NHI. In this way we feel that women, specifically pregnant women, would actually be prejudiced.

The other issue is around health care practitioners. There are many hoops that they have to jump through to eventually become contracted to provide services to NHI beneficiaries. and we feel that it does infringe on their rights to practise their craft. 

The other one we’re concerned about, it’s not directly relevant to medical schemes, but it’s in terms of the implementability of the bill. The constitution has given the powers to provide healthcare services to the provinces. The bill actually infringes on those powers because in its attempt to implement the bill, the fund will have to buy services from the province, the province will be a service provider to the fund. We think that this goes against what is prescribed in the constitution because the province is already given those powers to provide healthcare services. What the fund is going to do is divert monies that are meant for the province into the fund. This is a conflict that needs to be sorted out.” – Health-e News