No patience: Many fear that the ANC government does not have the capacity to make its national health insurance plan work. Photo: Felix Dlangamandla/Daily Maverick/Gallo Images via Getty Images
As political surprises go, President Cyril Ramaphosa’s decision to sign the contentious National Health Insurance Bill into law a fortnight before the toughest election his party has ever faced is far from seismic.
Ramaphosa and senior ANC leaders, past and present, have for weeks fanned across the country to remind voters that every right they enjoy was won by the party — and to deflect blame for service delivery failures.
In the process, history has been rewritten, as former president Thabo Mbek revoked his apology for ignoring advice to build more power plants and cast load-shedding as a political conspiracy.
The apology many voters wanted from Mbeki — for refusing to provide anti-retroviral treatment on the public health system and allowing thousands of people to die preventable deaths around the turn of the century — never came.
By signing the NHI bill, Ramaphosa knowingly risked alienating a swathe of the electorate, the medical profession and the business community, but shifts the debate in the final two weeks of the election campaign to the promise of free universal healthcare, away from his government’s dismal record on safety, electricity and education.
“It is a bold move for the ANC-led government to push ahead into the elections with this law, given the controversy it has generated,” political analyst Ralph Mathekga said.
“It is a big gamble by the ANC and shows how emboldened the government is shortly before elections.
“Either a blunder or major reward will follow this daring move. It is a very populist gamble, but a gamble nonetheless.”
Mathekga said the ANC was well aware that a backlash would follow.
“The party is going to the election with an issue they can do without but I think this is where the party wants the battle to be — on the NHI and not about basic service delivery. On anything but basic service delivery.”
The outcry on the promulgation of the law, without heeding calls from the healthcare profession to redraft it to accommodate proposals that could smoothe the edges of the legislation, has been immediate and legal challenges are being prepared.
Business Leadership South Africa flatly said “the law will never work” because the state did not have the capacity to implement it, before calling the president’s decision populist and destructive.
“Public consultation cannot just be a matter of procedure but must include proper consideration of the input received, as spelled out in the Promotion of Administrative Justice Act,” the organisation’s chief executive Busi Mavuso said.
It was hard to believe, she added, that there had been proper consultation when a draft law was finalised without any substantial change after public comment was received.
“In this period of heightened electioneering, political campaigns are a distraction to the business of running the country, particularly at a crucial time for us to make progress on the major challenges facing our economy,” Mavuso added.
“The government is rushing populist policy through parliament, which can only be seen to be an electioneering ploy, as the significant and meaningful public input into the bill and its socio-economic ramifications have not been considered.”
The Democratic Alliance (DA) said its lawyers had been preparing a constitutional challenge to the bill and would file court papers “without delay”. Whether they will be ready to do so before 29 May remains to be seen.
“Our legal team was briefed months ago already,” DA leader John Steenhuisen said.
“We have built up reams of correspondence, including with Ramaphosa himself, that we will enter into evidence to show that the process which led to the adoption of this bill by parliament disregarded public input and that the bill itself is flagrantly unconstitutional.”
The Economic Freedom Fighters has described the promulgation of the law as “a catastrophic development”.
It also underscores the ideological distance between the ANC and the DA and makes the possibility of a post-election pact between the two parties smaller still.
The DA, whose voter support the latest Ipsos poll last month put at 21.9%, has seized on the NHI as a rallying cry, with alarmist rhetoric aplenty.
Steenhuisen described the bill as “more comprehensive in scope, more corrupt in intent, and more deadly in impact, than BEE [black economic empowerment], load-shedding, cadre deployment, land expropriation and nationalisation put together”.
Economists expect implementation of the NHI to cost between R300 billion to R460 billion, though it will be phased, as Ramaphosa reiterated this week.
According to Nicholas Crisp, the deputy director general for the NHI in the health department, the initial phase will run until 2026 to cater for mothers and children. The next phase will run until 2028 and will see the introduction of new taxes to fund the scheme. Full implementation may take decades.
Steenhuisen said the sums involved meant that the ANC was prepared to “tax to death” a country where 30 million people live in poverty.
Sick: Critics say the failing state of public hospitals is an impediment to the NHI system working. Photo: Sharon Seretlo/Getty Images
Personal income tax was likely to be increased by almost a third, with the burden extending to the poor, with no benefit in return because it was a given that the money would be looted.
“NHI would empower the minister of health to be directly involved in the day-to-day management of the biggest pile of taxpayer money that has ever been accumulated in South Africa,” he said.
“The looting that will take place is easy to imagine, yet too ghastly to contemplate.
“Just like ANC cadres looted Eskom to the point of collapsing our electricity supply … so too will they loot this NHI fund while people die.”
There have been warnings, including from those who hold no ideological objection to introducing national health insurance, that the country’s public hospitals are in a state of decline and not fit to implement the proposed model.
One of these warnings came from Malegapuru Makgoba, the former ombud for health, just before he retired in May last year.
Beyond that still, there is real fear it lacks the institutional capacity to run successful state monopolies on electricity, logistics or water, and is feigning confidence it could provide quality healthcare for 60 million people.
For critics of the NHI as conceptualised in the law, it is insanity to effectively nationalise private healthcare rather than simply leveraging it to accommodate the poor, as the DA says it does in the Western Cape.
It also — and this is offensive to core DA voters and anybody who resists the limits the state places on individual agency — restricts choice in an intimate sphere.
The reason is that the drafters of the bill believed that because of South Africa’s high levels of inequality, there was no alternative to total state control of healthcare.
They therefore ruled out the “Bismarck model” where citizens pay a fee to fund healthcare that can be provided either by the state or private facilities. Instead they borrowed from the “Beveridge model”, which was rolled out in England 80 years ago and makes the state the single buyer of healthcare, funded by taxes.
Patients will register at a primary point of care close to home where treatment will be free and from where they will be referred to private or state hospitals and specialists, if need be. It will, Crisp has said, bring an end to wasteful, unnecessary referrals and procedures.
The legislation stipulates strict adherence to these referral pathways and it is not clear what will ensue if a patient wishes to consult specialists when their primary healthcare provider does not think it is necessary.
Nor is it clear what treatment the state will not cover but which patients can access if they are prepared to pay out of their own pockets.
Once the NHI is fully implemented, private medical aids will not be able to provide cover for services that are paid for by the state, relegating them to the field of complementary or vanity procedures.
Discovery Health, which holds more than half the open schemes market, recently equated this with barring South Africans from paying for private security or educating their children in private schools.
It cautioned that limiting the right of patients to purchase private healthcare, after they have contributed to the NHI, could see the legislation fall foul of the limitation clause in section 36 of the Constitution.
“Limiting people from purchasing the medical scheme coverage they seek will seriously curtail the healthcare they expect and demand,” the company further argued in a statement in February.
“Preventing those who can afford it from using their medical scheme and forcing them into the NHI system … will also have the effect of increasing the burden on public funding which taxpayers need to cover.”
It appealed to Ramaphosa to send the bill, which was adopted by the National Council of Provinces in December, for constitutional review before signing it.
Business Leadership South Africa cautioned that lack of proper consultation itself was cause for legal challenge and said Ramaphosa could have saved much money and trouble by simply ensuring the bill was sound before making it law.
“When laws are ambiguous or unconstitutional, they will inevitably end up being challenged in court, requiring the government to pay for legal processes.
“Many of these lead to amendments. It could all be avoided by properly engaging with public input and getting the legislation right in the first place.”
Professor Saloshni Naidoo, the head of public health medicine at the University of KwaZulu-Natal, said the legislation was silent on key components of how the NHI will function and relied on doubtful assumptions on available human resources.
“What this bill speaks to is the funding mechanism but it does not speak to the other pillars of operating the system, including human resources, leadership and governance,” she said.
“For example, how are we going to be able to track all the new patients that we need to care for in the public system? These details are not spelled out.”
Naidoo said the lack of legislative clarity was all the more concerning because of the problems in public health. “There is a need for far more detail in terms of the implementation, especially given the challenges we are sitting with in the public system.
“We don’t have enough doctors, and we don’t have enough nurses. Some public sector nurses moonlight in the private sector. So this idea that the private sector is going to make up the shortfall of the public sector is a bit misleading because I don’t think there are enough.”
Even the perception that there is a wealth of specialists in the private sector who could meet the demand of all South Africans under the NHI might not bear out, she added.
“The workload of private specialists is such that I don’t think there are enough to take over patients in the public sector.”
The risk that the country will lose more doctors because of the profession’s unease about the NHI may be real, Naidoo said.
“We are losing doctors for a variety of reasons, including the current state of the country. I won’t be surprised if some leave. I know there is a lot of uncertainty.”