If you drop the policymaking ball, the courts will decide for you

The growing and increasingly arrogant cluster of Ministers and Deputy Ministers plotting the course for South Africa Inc received another bloody nose this week, as the Gauteng Division of the High Court in Pretoria declared sections of the state’s National Health Act (NHA) unconstitutional. This Act should not be confused with the National Health Insurance (NHI) Act; but the ruling could open doors for similar challenges to the latter.

Ideologically-based dreck?

This court decision, and the decade or longer to-and-fro to navigate the healthcare sector to this point, is typical of South African financial sector, healthcare and social law making. Politicians draft an impractical, ideologically-based piece of dreck, are repeatedly told by their internal law advisers and the private sector they intend foisting the law onto that it will not stand up to constitutional muster, let alone be practically implementable, and then proceed to enact it anyway. In the case of the NHI Act, few will deny that the African National Congress (ANC) rushed the law through its final stages in a last-ditch effort to score points in the run-up to National Election 2024.

As someone who has penned countless articles covering the NHI process, your writer is amazed by the number of financial services and healthcare professionals who have bought into the lies being peddled. Surely, you read the legislation before applauding it. And ?surely, you take more than a moment to understand what government is proposing before applying your ‘turkey voting for Thanksgiving’ mindset to the plot? Instead of protesting in the streets over the execution of your country’s healthcare system, you beam broadly from ear to ear and declare free universal health coverage as fait accompli. The blood boils.

The reality is that by signing the NHI Act into law on 15?May?2024, your President has probably moved South Africa further from this ‘free for all’ promise than ever before. The general public has bought so many NHI-based lies that it is difficult to know where to begin correcting perceptions. Perhaps the easiest to dispel is this notion of free healthcare. Humbug.

This free (sic) healthcare will be funded through a combination of income and payroll taxes plus a healthy dollop of the monies collected from other tax-based revenue streams; it should be restated as taxpayer-funded universal healthcare.

Emotive but misleading arguments

A popular ‘NHI is non-negotiable’ argument centres on the inequality of outcomes in the private versus public healthcare realms. And government made a habit of lambasting the allegedly small subset of the public who benefit from the private healthcare sector, commenting how unfair it is for the general public to get subpar services from state hospitals. Herein irony upon irony.

First, these advantaged citizens not only fund their medical schemes out of pocket, but also chip in the bulk of the general taxation used to fund the public healthcare sector. Second, government itself is responsible for the shocking public healthcare outcomes it laments, despite spending a comparatively high percentage of GDP in this space.

But perhaps the biggest irony is that government, through the collective efforts of the Council for Medical Schemes and Department of Health has throttled private sector initiatives to broaden access to healthcare, by repeatedly blocking the low-cost benefit option process.

Those in the know will also appreciate that regulatory interventions in the medical schemes environment have curtailed the growth of this sector by introducing prescribed minimum benefits (PMBs) and forcing schemes to abandon a range of common risk-rating practices. These are sensible requirements; but they are somewhat out of place in the private sector, meaning it is no overreach to say our medical schemes environment is somewhat of a proxy for a public sector solution.

So, why was NHI met with such mad enthusiasm? Some answers can be found in a 2019 bestseller penned by author, journalist and political commentator Douglas Murray. In ‘The Madness of Crowds’ he unpacks and condemns humankind’s obsession with identity politics, and bashes various social justice movements for creating a climate of intolerance. He critiques the irrational, mob-driven lens being applied nowadays to public discourse and law making. Put another way:

The baying, irrational crowd does not assess the NHI Act on its intent or merit; but gleefully accepts it on the basis of the lies being spun by the ruling class; that it is a salve for access and inequality.

Getting your Acts in a row

The aforementioned High Court ruling did not weigh in on the NHI, but rather those section of the NHA dedicated to a so-called Certificate of Need (CON). The High Court judge ruled that the sections of the Act that allow government to decide where doctors and health professionals can set up shop were unconstitutional.

The court application was brought by trade union Solidarity, the Alliance of South African Independent Practitioners Associations, the South African Private Practitioners Forum, the Hospital Association of South Africa and a group of doctors in private practice; and it will not be the last.

“This judgement is a major blow to the total NHI idea, as the principle of central management is a core pillar of the NHI Act itself,” said Solidarity’s chief executive, Dr Dirk Hermann, quoted in an article on DailyMaverick.co.za. “A more extensive consequence of this ruling with regard to the CON is that parts of the NHI Act are now probably also illegal in principle.” He added that central planning, the essence of the NHI, had been found unconstitutional. We loved this line, lifted from the judgement:

Objectively, the CON scheme is not rational; there is no nexus between the scheme and its implementation and the purpose for which it was enacted.

To educate readers who have not paged through the NHI Act, it creates a central NHI Fund and a supreme leader of all aspects of the Act, the Minister of Health. The Act, enforced by the Minister, will have the final say on who can supply medical services; what medical services can be supplied; the exit price for such services; who can access the services; and the process for accessing same etc.

It further stipulates that medical schemes will only be able to provide healthcare services that are not on offer through the NHI. As this writer has previously stated, given the promise that NHI will provide quality access to healthcare services for all, existing medical schemes will be left stumping up for face-lifts and other elective surgeries only.

Do not bash this naysayer only

Before you bash your writer for being a cynic, consider the reflections from the masses of ordinary citizens offering comment to the aforementioned Daily Maverick piece. Firstly, a general observation that proves the public is painfully aware of government’s disdain for taxpayers.

Most commentators expect the Department of Health to appeal the ruling, with one reader saying, “these delusional ANC ‘leaders’ spend fortunes on their legal buddies … [wasting] taxpayer money which could have been used to fix public health care, which they [government] basically destroyed [in the first place].” PS, apologies for the square bracketing, dear reader.

Another issued a sigh of relief: “Thank heavens; let us hope that the healthcare groups employ the same Stalingrad tactics as our criminal elite until there is nothing left in the NHI that can pass legal muster. Maybe Dr Motsoaledi [the current Minister of Health] could do us a solid and cut out the criminality and theft that has destroyed public health in the interim?” And that, dear reader, is a good hope to end on. Reason:

The unspoken truth running through all of this is that given its budget, a government serious about public sector healthcare outcomes could have delivered everything it now promises in its non-negotiable NHI.