Discovery preparing legal challenge to the NHI

Discovery Health Medical Scheme says it is “participating in the preparation of potential litigation” against the South African National Health Insurance (NHI) Scheme with the Health Funders Association (HFA).
The group’s Principal Officer, Charlotte Mbewu, said that Discovery was “closely monitoring the NHI” and its impact on its members.
“We remain concerned that, in its present form, the NHI Act is unworkable without private sector collaboration and involvement and will not lead to the desired improvements in healthcare for all South Africans,” she said.
Mbewu said Discovery has proposed using a multiple-funder model for healthcare in South Africa to reduce risk and enable a sustainable healthcare environment in the long term.
Addressing medical aid members’ concerns, however, she said that “given the extent of the funding required for NHI and the complex implementation that lies ahead, there will be no impact on medical scheme members for the foreseeable future.”
Taking the legal route
The challenges of implementing the NHI in its current form do not mean that Discovery and others are sitting back, hoping that the government will catch wise to reality and make changes on its own.
“Discovery Health Medical Scheme is participating in the preparation of potential litigation against NHI that is being led by the Health Funders Association (HFA), a non-profit association of healthcare funders and administrators,” Mbewu said.
The HFA is one of many groups and healthcare representative bodies that are pursuing litigation against the NHI on the basis that it is unimplementable and unconstitutional.
Other litigants include trade union Solidarity, the South African Medical Association, the Board of Healthcare Funders (BHF), the South African Health Professionals Collaboration and the Democratic Alliance.
The legal challenges against the NHI are happening on several fronts, including technical implementation as well as the rationality that was applied in processing and approving the laws.
Solidarity claimed victory against the National Health Act (NHA) this month, where the certificate of need was declared invalid. The union said this ruling would serve as a basis to challenged similar aspects of the NHI in court.
Notably, the DA—which has been against the NHI—is now part of the Government of National Unity that makes up the seventh administration. The party has said it still disagrees with the policy and will try to work to find a solution from within government.
However, the GNU, on a policy level as a whole, has not hit reverse on the implementation of the NHI.
In fact, new health minister Aaron Motsoaledi has doubled down on the scheme and has hailed it as the panacea for inequality in healthcare in South Africa. He has also gone on the offensive, characterising any dissenting voices around the scheme as “propaganda” and “anti-poor”.
Despite Motsoaledi’s fervour, president Cyril Ramaphosa’s tone and messaging on the NHI have changed somewhat, moving from a “like it or not” attitude to one encouraging communication and collaboration on universal healthcare.
The president has, at the very least, acknowledged the pushback against the scheme and now seeks to find consensus—and to bring the private sector on board. However, for many, it is too little, too late, with the laws already enacted.
As such, even a more collaborative tone is unlikely to dissuade opponents from pursuing litigation as long as the laws stand as they are.
Healthcare groups, unions, business representatives, and others are seeking to have the laws struck down and sent back to parliament to be reworked into something that will achieve universal healthcare.
Experts have noted that because the NHI Act is now law, only three mechanisms exist that can impact its implementation.
- An agreement on a phased approach and only promulgating certain clauses in the Act at differentiated times are subject to consultation between the President, Minister of Finance, and Minister of Health, primarily on budget, resources, and capacity.
- The executive or parliament introduces an amendment to the NHI Act.
- Multiple litigious actions result in an outcome, forcing the Department to review and amend the Act to address the concerns in a court ruling, and thus, the Act cannot be implemented in its current state.