Executive Summary

SECTION27 and the Treatment Action Campaign (TAC) welcome the opportunity to comment on the NHI Bill. We have developed a submission on the Bill that focuses on key changes to the Bill that will render it constitutionally compliant, are implementable, and will make it capable of achieving its aim of moving towards Universal Health Coverage.

1. Governance
The size and mandate of the NHI Fund and the constitutional imperative of good governance necessitates the establishment of strong governance and improved accountability structures. Despite this clear need, the Bill centralises power in the Minister, who is involved in the appointment and removal of the Fund’s board members, who are in turn accountable to the Minister. The Minister also plays a significant role in the appointment of the Fund’s Chief Executive Officer and of the various advisory committees of the Fund. The Bill makes no provision for any oversight structures.

The failure to put in place adequate checks and balances for the exercise of power inevitably places the NHI Fund and the health care system at risk. Our submission recommends specific amendments to the Bill that will improve the independence and resilience of the governance structure. These recommendations address issues including appointment and removal of board members, functions and powers of the Board, and advisory committees of the Board, and make provision for public participation in the governance of the Fund.

2. Principles put into practice
The rule of law, participation, transparency, and universality are principles that must be put into practice under NHI.

Legislation must be accessible, clear, and predictable. Currently, the Bill establishes structures whose functions are not clear, and in some clauses, includes options for implementers, rather than providing certainty. We propose that the scope of the NHI Bill be reduced to include only provisions that are certain and can be implemented. Health systems change happens most

sustainably and effectively through experimentation and iteration. Not all aspects of the reforms need to be legislated in the Bill. Instead, we propose the use of a process for testing interventions and suggest that the Minister’s extensive regulatory powers under section 55 will allow for decisions about mechanisms, options, and structures to be made in the process of implementation.

Health care users and civil society must be able to participate in and have sight of the decisions and discussions under NHI. This includes participation in key committees, and the publication of all important information about contracting, benefits package development and decisions taken. A lack of participation and transparency has implications for accountability, buy-in, and trust.

Finally, Universal Health Coverage requires universality. The exclusion of asylum seekers and undocumented migrants from care under NHI runs contrary to the principle of universality and is a significant and unlawful regression in access to health care services, which will be subject to legal challenge on constitutional grounds. Further, this regression is of public health concern, leaving these excluded populations without HIV care, maternal care, primary health care, and most emergency medical treatment. We propose an NHI that lives up to the claim of pursuing Universal Health Coverage.

3. Financing NHI
Key to the delivery of equity, quality and universality in access to health care services under NHI will be the sustainable and affordable financing of NHI, and the efficient, equitable and effective expenditure of NHI funds. But this is not all. The dire state of the public health system will require additional investment. However, the financing plans and costing for NHI remain behind closed doors and instead, investment in health is decreasing through austerity budgeting in the medium term. We ask for clarity about the plans for financing the transition to NHI, including through shifts in conditional grants and the provincial equitable share, and through the removal of the medical scheme tax credit. Finally, we raise the contradictions within the Bill in relation to funding of emergency medical services.

4. The NHI cannot exist in a vacuum
While the NHI Bill makes reference to and proposes the amendment of some legislation, it fails to take advantage of legislation and processes that could be of use in achieving its aims. The Bill specifically provides for the non-application of the Competition Act 89 of 1998 to NHI. Such exclusion is not in the interests of health or of the NHI Fund and we propose the removal of the relevant section of the Bill. The Memorandum to the Bill also fails to acknowledge the recommendations of the Competition Commission Health Market Inquiry, implementation of which could be in the interests of the move towards NHI. We propose the consideration of the NHI Bill alongside the recommendations of the Competition Commission Health Market Inquiry.

5. What health care service users want from NHI
Finally, we have sought to inform people across South Africa about the NHI and to seek their inputs. We include consolidated inputs from 1280 people, gathered through community dialogues across seven provinces and from 232 people, gathered through an online and physical survey.

SECTION27 and TAC NHI Bill submission 29 November 2019