The National Health Amendment Bill (the Bill) was simultaneously published with the Medicines Amendment Bill on 18 April 2008. Both Bills are some of the most important pieces of health legislation to be proposed in recent years. The Medicines Amendment Bill is the subject of a separate submission that accompanies this one.
We would like to make clear at the outset that we support the need to regulate the private health sector. We therefore do not take issue with the principle of legislation that allows for this. What we take issue with is the hasty drafting of this legislation which leaves this Bill fatally flawed.
A Bill to introduce a mechanism for the regulation of the private sector is critical and overdue. Justifiably, this Bill is aimed at regulating the manner in which the cost and prices of health care services are arrived at in order to limit unreasonable and unsustainable cost escalation through profiteering from private health care. While in and of itself it is not sufficient, it is central to the constitutional project of progressively realising the right of access to health care services. However the Bill will fail to meet this objective.
In this regard we raise the following concerns:
- the lack of consultation in the process of developing the Bill;
- the lack of independence of the proposed regulatory mechanism;
- the delegation of authority; and
- the ambiguities and gaps in the Bill.
The result of the deficiencies in the Bill will be to render it ineffective, and to delay any reasonable regulation of private health services.
Before we address these concerns we set a context for the consideration of the Bill in relation to the Constitution, health policy, and the funding of health care in South Africa.