NHI faces biggest legal challenge yet

The South African Medical Association (SAMA) has announced it will launch a “significant” legal challenge against the government’s National Health Insurance (NHI) Act.

It will challenge the Act on multiple constitutional levels, outlining the risks and massive implications the NHI will have on healthcare, service delivery, governance and patient access.

At a special media briefing on Tuesday (1 April), chief executive of the association, Dr Mzulungile Nodikida said that the legal challenge will be the most comprehensive brought before the courts to date.

The SAMA legal challenge reflects the “missing voices” in all the legal challenges brought to date—that being the more than 12,000 medical professionals on the frontlines of healthcare in the country, he said.

Nodikida noted that the association believes that the NHI Act severely prejudices doctors and patients alike, and will ultimately limit access to healthcare services in the country.

In addition, the scheme is not financially feasible, will adversely affect the public healthcare sector and damage the long-term sustainability of healthcare in South Africa, the CEO said.

SAMA chairperson, Dr Mvuyisi Mzukwa, said that most legal challenges against the NHI have focused on section 33 of the Act, which restricts medical aid schemes from operating once the scheme is full implemented.

However, Mzukwa said that SAMA’s case will challenge multiple provisions of the Act, focusing on the scheme’s real-world impact and the bureaucratic and structural failures the laws introduce.

It will be backed by extensive medical and legal analysis, SAMA said.

Some of the key issues SAMA is contesting include:

• Massive logistical and bureaucratic flaws of the scheme
• Centralisation issues that will make it harder to access healthcare
• A severe lack of clarity over NHI services
• Adverse impact on healthcare professionals and level of care
• Government’s rubber-stamping of the laws, ignoring inputs from industry

Dangerously flawed system

Speaking on the broken logistics of the NHI, Mzukwa said that every South African will have to register as a member of the NHI before they can use it and receive treatment.

Before this registration, even emergency medical care will be inaccessible.

It would take years to complete this registration process nationally, as it can only be completed at accredited primary healthcare providers.

Patients will be forced to seek care at their primary healthcare provider first, even if that provider is overloaded or cannot provide sufficient care. There is no clarity on how patient transfers will occur.

Ironically, this entire process goes against the idea of universal healthcare coverage as it severely reduces access.

Other issues flagged include the lack of national systems and databases to give patients access to care and doctors to health records, and all NHI complaints being directed to a centralised office within the NHI structures that will quickly become overburdened.

Crucially, as has been raised many times in the processing of the laws, SAMA said that the Act lacks clarity about what services the NHI will offer.

While the government has hand-waved this away by saying this will come later through regulations, SAMA said that there are nine conflicting definitions of the NHI benefits within the Act itself.

“South Africa is embarking on a radical overhaul of its healthcare system without even knowing what it will offer to patients,” Mzukwa said.

This also extends to procurement, with the procurement of supplies being entirely unclear within the laws—raising concerns about supply chain management and stock shortages.

Mzukwa said the association is particularly concerned about the impact the Act will have on health professionals—those it represents more directly.

He said that many professionals are already stretched beyond their limits, and the Act introduces “impossible accreditation standards” that can only be met after registration with the NHI.

This causes a paradox that makes compliance unattainable for workers who are already under severe strain.

Mzukwa said its analysis shows that a surgeon already works at about 158% capacity in South Africa. With the NHI, that same surgeon would have to work at 366% capacity—for half the income.

“This scenario is unrealistic and unsustainable,” he said.

The Act also does not protect doctors against medicolegal claims, even though they are expected to operate within NHI protocols.

SAMA argues that medical aid members and beneficiaries of the Road Accident Fun and COIDA will all lose their benefits as a result, exacerbating the troubles that already exist here.

“These will be replaced by an ill-defined, unworkable and unaffordable NHI system,” Mzukwa said. “This represented a major step back in healthcare access.

SAMA said it has engaged extensively with the NHI process, giving detailed comments and insights to the government every step of the way.

It engaged with the portfolio committee on health, responded to calls for input and even petitioned President Cyril Ramaphosa directly to return the laws to parliament to address these and many other problems.

However, all these inputs fell on deaf ears, with the laws being signed and these comments ignored.

SAMA said that it does not oppose the principle of universal health coverage—however, the NHI risks collapsing South Africa’s healthcare system entirely.

“Our litigation is about protecting patients, ensuring doctors can continue to provide care, and preventing the state from implementing a dangerously flawed system that could do more harm than good,” Mzukwa said.

SAMA is expected to file its case this week.