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NHI bill in line with constitution

20/20: A patient has her eyes checked at one of the fa­cil­i­ties that will be af­fected by Na­tional Health In­surance leg­is­la­tion, which the gov­ern­ment says is con­sti­tu­tion­ally sound. /

The state attorney’s office has assured parliament that the government’s first piece of draft legislation for implementing universal health coverage is constitutionally sound.

The state attorney’s office has assured parliament that the government’s first piece of draft legislation for implementing universal health coverage is constitutionally sound.

The National Health Insurance (NHI) Bill has elicited fierce debate since its tabling in parliament on August 8, as it sets out sweeping reforms in the health system including a diminished role for provincial health departments. The constitution gives national and provincial government concurrent, or shared, health powers.

DA leader Mmusi Maimane wrote to parliamentary speaker Thandi Modise shortly after the bill’s release, asking her to seek legal advice on the bill’s constitutionality.

At the time, he said it appeared the bill was overly intrusive on constitutionally enshrined rights of provincial legislatures to enact health laws.

Acting chief state law adviser Ayesha Johaar told members of parliament’s health portfolio committee on Thursday that the bill was certified as being constitutionally sound on July 29. Its provisions were in line with section 27 of the constitution, which obliges the state to progressively realise the right to access health services.

The bill was rational, and in line with SA’s international commitments, Johaar said.

On the issue of the provinces, she said it was the National Health Act that determined the roles, responsibilities and functions of the spheres of government with regard to health, and not the constitution itself.

“We interpret this to mean provinces may enact provincial laws to deal with health services authorised and contemplated by the national framework and to give effect to national policy. Any amendment to these provisions does not in and of itself offend the constitution.”

The DA’s shadow health minister, Siviwe Gwarube, a member of the committee, said she did not accept Johaar’s position on the bill. “A legal opinion is just that — an opinion,” she said.

Health minister Zweli Mkhize and his officials briefed MPs on the bill’s provisions, which include establishing a central National Health Insurance fund to purchase services on behalf of the entire population that will be free at the point of care.

In response to MPs’ questions on financial implications of the NHI, Mkhize said there was close consultation with the Treasury on its costs.

Mkhize said the bill’s provisions on its funding sources — including redirecting funds allocated to provincial health departments, scrapping medical-scheme tax credits, instituting a payroll tax, and a surcharge on income — did not step on finance minister’s toes.

Measures such as these would be formalised in a money bill that would be tabled by the finance minister, he said.

“We have not transgressed, and it is not wrong to have it [in the bill],” he said.

Health department technical adviser on NHI Aquina Thulare said it was expected the fund would spend no more than 3% of its budget on administration.