The policy on national health insurance was recently published for public comment. Unfortunately it lacks particularity, which makes it difficult to provide meaningful feedback.

On 12 August 2011, the policy on national health insurance (NHI) was published in the Government Gazette. In accordance with this Government Gazette, the public enjoys two months from 12 August 2011 to comment on the policy. Certainly, the process sounds equitable. However, in light of the policy's lack of particularity, it is difficult to make precise comments at this juncture.

The policy opens with a number of statements including that the national health insurance scheme or NHIS, "is intended to ensure that all South African citizens and legal residents will benefit from healthcare financing on an equitable and sustainable basis".

The point of the NHIS is apparently to provide coverage for the whole population and minimise financial burdens carried by individuals for the purposes of purchasing healthcare insurance and thus in accessing healthcare services. In this regard, the problem statement on page 5 of the policy sets out what, in accordance with the policy, is wrong with South African health services. The problems with the healthcare service in South Africa then reach their crescendo in paragraph 15 of the policy where the statement is made that "[t]he high costs [of healthcare] are linked to high service tariffs, provider-induced utilisation of services and the continued over-servicing of patients on a fee-for-service basis. Evidently, the private healthcare sector will not be sustainable over the medium to long term".

The difficulty with this statement is that it remains unsupported with any particular and empirical evidence in the policy. Stakeholders are required, to a large degree, to accept at face value the statements contained in the policy especially in relation to both the problems with South African healthcare and the solutions that are proposed.

The issue of quality of healthcare is fleetingly dealt with in section 2.2 of the policy. The quality of healthcare services is dealt with in the context of the quality of healthcare services at public facilities. Very little attention is given to the issue of quality of healthcare at public facilities. A passing statement about quality of public health establishments is made that "[t]his type of arrangement is not suitable for the country's level of development".

The steps to be taken to address the issues concerning the quality of services rendered by public facilities are central to the success or failure of a public healthcare system in South Africa. Arguably, due to the nature, scope, ambit and overall poor quality of services at public facilities and the consequent fear of this system, the Department of Health is facing a great deal of resistance to the introduction of the NHIS.

The debate may very well be different if public facilities provided good quality and effective healthcare. This appears to be the irony in the current debate about the suitability of NHIS for South Africa.

A great deal of attention is also paid to the provision of private healthcare services and the costs that are incurred by the average person as a result of the provision of these services. Once again, the policy document reads as a statement of facts - based on evidence of an empirical nature. Care should be taken before accepting what it is that the policy is expressing in relation to both fact and opinion.

The objectives of a NHIS for South Africa are set out expressly in paragraph 55 of the policy. Once the objectives are understood, what emerges is that the NHIS consists of, or is to be constructed as, a large medical scheme. Most people who are familiar with private healthcare funding, understand the workings of a medical scheme and therefore a NHIS should not be unfamiliar.

In terms of current legislation governing medical schemes, medical schemes are not entitled to discriminate amongst applicants and members alike on the basis of grounds such as health status or sex. This is an important feature of current medical schemes legislation in South Africa.

The policy is not clear on whether or not such a similar regime will be applicable to the NHIS especially in relation to the:

  • calculation of contributions or premiums;
  • the particular basket of benefits to which people will be entitled; and
  • co-payments that may be required from time to time, in order to access the benefits available from the NHIS.

Certainly, pooling risks and funds "so that equity and social solidarity will be achieved through the creation of a single fund" is laudable. But in the context of the particular problems with which South African healthcare services are faced, and that are dealt with as part of the description of the burden of disease in the policy document, the pooling of funds must take place on the basis that either:

  • the younger and the healthier will contribute more relative to their utilisation of the NHIS that they enjoy; or
  • individuals who potentially pose a greater threat to the NHIS through increased utilisation as a result of their healthcare condition, may be required to pay extra in relation to the utilisation and accessing of required health services.

The objectives of the NHIS are stated as such:

"(a) To provide improved access to quality health services for all South Africans irrespective of whether they are employed or not.

(b) To pool risks and funds that equity and social solidarity will be achieved to through the creation of a single fund.

(c) To procure services on behalf of the entire population that efficiently mobilise and control key financial resources. This will obviate the weak purchasing power that has been demonstrated to have been a major limitation of some of the medical schemes resulting in spiralling costs due to strengthen the under-resource and strain public sector so as to improve the health system's performance".

Fundamentally, the process that is envisaged divides the country into district health services. These services will be responsible for identifying healthcare needs in order to establish the required services in each district.

Healthcare providers will then be accredited, through a separate office, which falls under the Department of Health, to provide services to members of the NHIS. The services will be purchased by district health authorities. This means that members of the NHIS will not be required to make payment (other than the co-payment referred to in the policy) for the provision of healthcare services.

This is an important qualification in so far as the promise of universal care is not universal as much as it is qualified by both the particular benefits that will be available and the services that are to be provided in terms of the NHIS.

A further aspect of the policy document that requires attention is the precise scope and ambit and contents of the "defined comprehensive primary care package" that is referred to in paragraph 66.

Certainly, the aspirational or notional ideal of a NHIS is laudable and there is no difficulty with accepting its place in South African society. However, aspirational or notional ideals are not those that should be necessarily driving the debate for the purposes of establishing a NHIS. In any event, the debate has probably progressed beyond such notional and aspirational ideals. In accepting the NHIS as a reality, the benefits of NHI must be made plain and clear.

Conspicuous by its absence in the policy document is the particular benefits to which South Africans will be entitled once they join or are included in the NHIS; bearing mind that it is not possible for anyone to be excluded from the NHIS.

In this regard, paragraph 137 of the policy states expressly that "[m]embership to the national health insurance will be mandatory for all South Africans." In paragraph 138, the policy states that "... no South African and legal permanent resident can opt-out of contributing to national health insurance even if they retain their medical scheme membership".

Therefore while membership of the NHIS is compulsory, it is not apparent what it is that this membership will entitle its members to receive. This is a major failing of the policy which must be addressed in order for it to achieve any of the goals and objectives that are set for a NHIS.

While the principle funding mechanisms for NHI are also vague in relation to the people who will pay for NHIS or even how payment will be made, especially in light of the socio-economic diversity in South Africa, one must not ignore the fact that co-payments may be levied as part of the NHIS process.

Therefore, the ideal of universal coverage providing all South Africans access to primary healthcare benefits or some sort of defined primary healthcare package on the basis that no cost will be levied on the patient when the healthcare service is delivered, is not borne out by the policy.

In this regard, paragraph 116 sets out carefully the grounds in respect of which co-payments will be required by persons accessing services in terms of the NHIS. In addition, the particular circumstances in respect of which a co-payment may be levied are not exhaustively stated in the policy document.

Those circumstances in respect of which a co-payment may be levied, as currently stated, are as follows:

"(a) Services rendered not in accordance with the national health insurance treatment protocols and guidelines.

(b) Healthcare benefits that are not covered under the national health insurance benefit package (e.g. originator drugs or expensive spectacle frames).

(c) Non-adherence to the appropriately defined referral system.

(d) Services that are rendered by providers that are not accredited and contracted by national health insurance.

(e) Health services utilised by non-insured persons (such as tourists)".

The costs of NHIS are seemingly dealt with in section 15 of the policy. However, they remain vague in relation to assumptions concerning real growth in gross domestic product, which is fundamentally a projection based only on assumptions by the National Treasury. The policy is silent on whether or not changes to NHIS will be required in relation to the growth figures not being achieved over the periods referred to in particularly paragraph 125.

Whilst paragraph 126 states that "[t]he intention is that the national health insurance benefits, to which all South Africans will be entitled, will be of sufficient range and quality that South Africans have a real choice as to whether to continue medical scheme membership or simply draw on their national health insurance entitlements", belies the clarity of the particular benefits to be provided by NHIS.

This is especially true for persons who rely heavily on current medical scheme benefits, whether by way of a medical scheme policy or a short-term insurance policy, and ignores the degree to which the disease identified in the policy have ravaged, and will continue to ravage the South African population.

A timetable is set out in paragraph 159 for the purposes of implementing the NHIS. Certain changes to law will be required in order to introduce such animals as the National Health Insurance Fund, the Office of Health Standards Compliance, and the policies and principles upon which a NHIS will rest. An intensive legal process is therefore to follow commencing from the last quarter of 2011 and continuing in earnest in January 2012.

Notwithstanding a strong desire to participate in the debate concerning the NHIS, the particulars that are required to facilitate reasonable and rationale debate remain absent from the documents published by the Department of Health.

In this regard, the:

  • constituents of the primary benefit package must be clarified;
  • a precise plan for purposes of upgrading public health facilities is required;
  • criteria for the accreditation of healthcare providers, both in the public and private sectors, must be clarified;
  • costs must be confirmed; and
  • nature of the exclusions of healthcare benefits must be stated.

Certainly, constitutional concerns remain especially those relating to the rights currently enjoyed by every South African to freedom of association. This is in addition to other rights in terms of the Constitution of the Republic of South Africa, 1996, to equality, dignity, life, housing and food security, administrative justice and information. In this regard, the following statement was made by the United States District Court for the Northern District of Florida, Pensacola, in dealing with the healthcare reforms planned by the Obama Administration:

"The existing problems in our national health care system are recognized by everyone in this case. There is widespread sentiment for positive improvements that will reduce costs, improve quality of care, and expand availability in a way that the nation can afford. This is obviously a very difficult task. Regardless of how laudable attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution, Again, this case it not about whether the Act is wise or unwise legislation. It is about the Constitutional role of government". (At page 75 of the judgement, State of Florida et al v United States Department of Health and Human Services et al Case No.: 3:10-cv-91-RV/EMT.)

One accepts that the current policy document is the Green Paper to which the Minister of Health refers in a media statement dated 11 August 2011. However, the difficulty, remains that NHIS is an emotional debate and information should be forthcoming sooner rather than later to make the process of establishing a NHIS meaningful.

While there may be a great deal of scepticism about the ability of a NHIS to solve South Africa's healthcare woes, the constitutionality of such a system will have to be tested. The introduction of major public policies and shifts in fundamental socio economic programming, such as the introduction of a NHIS, require that such social programming be consistent with the Constitution, which governs our land.

Without such consistency, a NHIS will find itself caught in the brambles of legal debate and may be forced to submit to constitutional design rather than a design welding social solidarity, universal coverage and socialist health economics.

The fundamental reality of a NHIS is that no one is opposed, in principle, to universal coverage in respect of healthcare services for all South Africans. However, the enforcement of one single policy, driven by exclusionary rhetoric and absenting proper debate is of concern. This is especially so in relation to the facts that accessing healthcare services is an emotional issue.

Healthcare choices are ultimately made by the individual being able to select the course of action most appropriate for him or her. Certainly, there is nothing in the current policy that militates for changing such social freedoms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.