Crucial omissions in proposed NHI Bill could impinge on public’s constitutional rights

ON FRIDAY, the FW de Klerk Foundation (the foundation) made a written submission on the National Health Insurance Bill – B11-2019 – (NHI Bill) to the portfolio committee on health.

The NHI Bill envisions the establishment of the NHI Fund – a health-financing system serving as the “single purchaser and payer of health care services” – to effectively achieve Universal Health Coverage (UHC) and give effect to the state’s constitutional duty to provide access to healthcare services for all.

The foundation unequivocally supports the pursuit of UHC – characterised by the World Health Organisation (WHO) – as providing all people with access to health services of sufficient quality, without financial hardship.

The foundation, however, does not believe that the proposed NHI is the only means to achieve this noble goal for South Africa.

Serious flaws in the NHI Bill could hinder the state from finding workable solutions to address the stark inequality in healthcare services.

The foundation analysed key failures of the NHI Bill under the following broad themes:

Rule of law and rationality. The impact of lack of information, and vagueness on the right to public participation.

Governance concerns, coupled with the broad powers of the minister of health.

The foundation also raised potential concerns on provisions of the NHI Bill that could impact on rights in the Bill of Rights, such as an individual’s right to freedom of association and the right to freedom of trade, occupation and profession.

The rule of law, which at its core excludes arbitrary power and guarantees equality before the law, also requires legislation and rules to be devoid of vagueness. It is crucial for the public to know – with reasonable certainty – the impact of the provisions of the NHI Bill.

Failure to provide the necessary information on the impact of the NHI Bill also impacts on the public’s right to public participation in the legislative process, as the public cannot meaningfully engage.

This omission also importantly deprives the public of the means to test the rationality of the measures proposed, which is a critical failure.

CHRISTINE BOTHA | Manager, Centre for Constitutional Rights