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Few would deride the concept of universal health care if it means access to healthcare services for all who genuinely need them. However, the economics of providing such access generally means the concept mutates into something different from simply taking services where and when they are needed.

With the parliamentary portfolio committee on health dealing with a range of public comments on the National Health Insurance (NHI) Bill, it may be useful to revisit certain aspects of the architecture of the bill, what changes to the healthcare system are proposed, and what may occur as a consequence if the bill as it stands becomes law.

The bill refers to universal access to healthcare services, a concept drawn from section 27 of the constitution. This is arguably a distinct concept from the actual healthcare services that can be accessed. The range of healthcare services one can access may and does vary from one jurisdiction to another. In the main, the services are limited by the practicalities of arranging access, in respect of available healthcare resources and the economics of the costs of such services.

Therefore, the NHI Bill makes much of achieving “the progressive realisation of the right of access to quality personal healthcare services” and making “progress towards achieving universal health coverage”.  However, it does not clarify what services are to be provided to achieve a positive health outcome, with reference to the continuum of healthcare services a patient may need, from an initial diagnosis to perhaps tertiary care. This lack of clarity underscores the distinction between access as a concept and healthcare services as a separate consideration.

While the NHI Bill defines “healthcare service”, the term is fraught with ambiguity in so far as the definition provides that it is “healthcare services, including reproductive health care and emergency medical treatment, contemplated in section 27 of the constitution”. The definition therefore does not advance the interaction between the right of access and what is available to be accessed.

Additional definitions appear in clause 1 of the bill, including “ambulance services”, “comprehensive healthcare services”, “emergency medical services”, “health goods”, “health-related product”, “medicine” and “primary health care”. However, the NHI Bill does not knit these terms into a cohesive statement of what they mean for the services to be accessed.  

While clause 2 of the bill proposes a mandatory prepayment system to achieve “sustainable and affordable universal access to quality healthcare services”, the services themselves remain oblique and unclear — almost like buying a ticket to see a movie but not being told what movie you are actually going to see.

As part of a comprehensive overhaul of the healthcare system, the bill proposes the introduction of a range of structures for both the governance of the NHI Fund and the purchasing of healthcare services. Chapter 7 of the NHI Bill sets about proposing various committees that will be responsible for separate elements of the NHI Scheme, each with differing mandates and powers.

There is a benefits advisory committee (clause 25), a healthcare benefits pricing committee (clause 26) and a stakeholder advisory committee (clause 27).  These are in addition to the national department of health, district health management offices, contracting units for primary care and the office of health products procurement.

Whether such an ornate arrangement of public-based entities is required or needed to ensure access to universal healthcare services is unclear, especially in respect of the financial resources that will be needed to sustain and maintain such structures in circumstances where resources may be better used in the provision of the healthcare services themselves.

A further point of clarification that will need to be addressed by the NHI Bill as it progresses through its legislative passage is what the interaction will be between an NHI Fund and existing healthcare structures and products designed to achieve access to healthcare services and payment for such services. Such structures include medical scheme products and insurance products dedicated to defraying expenditure incurred by patients.  

Clause 33 of the NHI Bill states that medical schemes “may only offer complementary cover to services not reimbursable by the fund”. From an ordinary reading of clause 33 the intention appears to be that where a service is available from the NHI Scheme and is reimbursable by the fund, that service may not be offered by a medical scheme or be reimbursed by a medical scheme.

However, the consequences of curtailing and limiting the services offering by medical schemes has the potential to undermine the stability of the existing medical schemes market. Current benefit options may need to be amended, if not abandoned entirely, or reduced where the NHI Fund operates and usurps certain services into its offering.  

Should that be the intention of the NHI Bill, medical schemes will have to assess their place and, more importantly, their economic relevance in the context of an NHI Scheme. It may be that the bill, while not compelling a person to become a “user” of the new scheme but making the payment of contributions to the fund mandatory, is in effect forcing the population to join the fund to access some healthcare services that will not be available from alternative sources such as medical schemes.  

However, a promise of access in one’s capacity as a member or user of the NHI Scheme does not guarantee prompt and efficient access to healthcare services at the point where they may be needed.  Therefore, given the paradigm shifts to existing healthcare services proposed in the bill in both the public and private sectors, a greater degree of circumspection is called for, particularly with reference to the constitutionality of such a large-scale social engineering project.

• Kirby is director of healthcare & life sciences law at Werksmans Attorneys.

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