In-Depth On NHI – Common Themes Emerging From Parliamentary Hearings (Part 1)

On Wednesday this week, it will be the 25th day of public hearings in Parliament on the National Health Insurance Bill since the hearings started in May last year.

Although the committee is yet to deliberate on the Bill clause-by-clause, the public hearings in Parliament so far, have given a glimpse into some of the thinking of the MPs who are set to decide on this important Bill.

Having listened to many days of hearings, we identified four main themes (there are more) that emerged from the virtual oral submissions since May and noted how members of the committee responded to them, hinting at what their party's approach may be to the many concerns and recommendations. Spotlight also approached MPs representing the various political parties in the committee, but not all responded by the time of publication.

1. Nuance lost in "for or against" framing

One notable aspect of the process so far is how MPs, mostly those from the ANC, have attempted to straight-jacket responses to the Bill into "for-or-against" - in the process often riding roughshod over more nuanced arguments.

One basic question kept coming up, often asked with slightly different wording - "Do you support the Bill?", or put differently - "[Are you] comfortable with the current two-tier system of healthcare in the country, which left the majority of poor people without access to quality healthcare. With the two tiers, most of the money went to private aid medical schemes - rather than serving the people?", "Or do you believe in social solidarity?" Presenters were then asked to clarify their position.

In the majority of the oral submissions, stakeholders expressed support for the principle of universal healthcare, acknowledging the inherent inequities of the current health system arrangements but many had doubts if the Bill will get us to universal quality healthcare. Others, such as the labour union Solidarity was blunter in trashing the Bill as unaffordable, unnecessary and unworkable.

2. Concern over existing healthcare services

According to DA MP Siviwe Gwarube who sat through the bulk of these meetings, the issue of access to quality care is critical. "While the state may be able to provide some kind of standardised access to healthcare - quality is a massive problem in South Africa. Big investments into infrastructure, human resources, and governance structures would need to be made before universal healthcare is finally realised," she said.

Dr Benny Malakoane, president of the National Healthcare Professionals Association (NHCPA) and former Free State MEC for Health, during their submission also called for existing healthcare facilities to be overhauled before implementing the NHI and Shaun Zeelie, president of the South African Association of Hospital and Institutional Pharmacies during their submission said it is critical for non-compliant health facilities to be upgraded "so not to further affect people's rights to access to healthcare services". Representing the Khayelitsha Health Forum, Mzanywa Ndibongo also stressed that the success of the NHI Bill depends on a strong public healthcare system so these challenges must be addressed. "Failing to do this, we will be setting up the NHI to fail," he told MPs.

Responding to these concerns during the Women's Legal Centre's submission, one ANC MP, Annah Gela drew from the British NHS. "It was common knowledge that the British implemented their national health system at the worst time when the system was failing. It was reported that there was a patchwork of different services that all had varying levels of quality and access. Today, the British National Health Services (NHS) was a model system for comprehensive quality healthcare for all. Should South Africa not follow this proven model of healthcare?"

Committee chair Dr Kenneth Jacobs told Spotlight that NHI brings hope as "an opportunity to equate the health outcomes for all people". "Therefore, we start with the political will to bring about this opportunity for all. We have to start somewhere and not look at what we do not have in place but rather at what we do have and improve as we go along," he said. "This is followed by the policies which can be measured and by which we measure ourselves. We have a hope that the budget will follow the policies and the need. Finally, it is up to all of us to do the proper implementation."

3. Health budgeting and financing

Despite Jacobs' hope that the budget will follow the policies, some stakeholders in their presentations raised issues around affordability (costs) and viability. During the Alliance of South African independent Practitioners Association's (Asaipa) submission, Dr Unben Pillay told MPs they are concerned over where the funds will be coming from for NHI and more clarity is needed. Asaipa represents more than 5 000 GPs. Many other stakeholders aired similar concerns.

But Jacobs referred Pillay to sections 48 and 49 in the Bill, which according to him provided sufficient information on financing. Explaining the clauses, Jacobs said clause 48 provides for the South African Revenue Service (SARS) to collect revenue for the NHI Fund. This can include collecting any supplementary health tax levies where applicable. "The Bill stated that National Treasury would, in consultation with the Minister of Finance, the Minister of Health, and the Fund, determine the budget and allocation of revenue to the Fund on an annual basis. Clause 49 clearly indicates that 'the Fund is entitled to money appropriated annually by Parliament to achieve the purpose of the Act'. This included general tax revenue reallocation of medical scheme credits, payroll tax and surcharge on personal income tax introduced through a Money Bill by the Minister of Finance and earmarked for use by the Fund," Jacobs said.

Yet Pillay raised concern that taxation is the main means to fund NHI. "We have a serious unemployment problem in the country," he said. "The majority of youth were unemployed and therefore taxation from people who were working might be difficult to bring in."

When the Federated Employers Mutual (FEM) assurance company raised similar concerns over the sources for funding NHI, ANC MP Tshilidzi Munyai also threw in a stopper question and reminded FEM that NHI was not a Money Bill. "The Bill outlines principles about where the funds would be sourced and emphasise that the core funding would be the public tax rolls. Why does FEM see it as necessary for further details to be provided in the NHI Bill when all funding matters were dealt with by Treasury and money would be processed," he asked.

Also raising concerns over affordability, the Institute for Race Relations' Dr Anthea Jeffery referred to both President Cyril Ramaphosa and former Health Minister Dr Zweli Mkhize who earlier said NHI will be implemented regardless of cost. "That is frankly irresponsible," Jeffery said. "There was an assumption that the NHI would be some magic golden bullet that would solve all those problems. In the real world, one had to look very carefully what the unintended consequences might be, the unexpected costs, and the overall impact on the economy." Citing findings from the Davis Tax Commission she said it was found that the NHI would not be sustainable without better economic growth.

Jeffery told MPs the Bill offers no credible financing mechanism and will be unaffordable. But Munyai asked Jeffery if she was aware that the bulk of the funding for the NHI was already in the system? Was the system not repurposing the existing resources and augmenting them with additional resources on a gradual basis? The financial implication of the Bill indicated that some costs were budgeted for," he said.

Van Staden also raised concern over NHI costs in one meeting. "Until today it is still not clear what the total cost will be to get the NHI up and running and if South Africa can afford it. There is also no indication of the financial implication that the NHI boards will have on the taxpayers' pockets," he said.

Gwarube said while the process is ongoing in the committee (public hearings followed by drafting phase) there has been a defunding of the National Health Insurance Programme within the Department of Health.

According to Gwarube, the way the funding model of this Bill has been set up, it will be impossible to fund. "It would be irresponsible for the National Assembly to pass legislation that has financial implications for the sake of ideological battles when there is no clear path to fund it. Our view (DA) is that this Bill needs to be panel beat and altered to include a model that can be funded and that will provide quality universal healthcare," she said.

Last year, National Treasury in the 2021 Medium Term Budget Policy Statement (MTBPS) stated: "A limited costing of the national health insurance policy proposal has previously shown that it would require about R40 billion per year in additional funding in the first five years, and perhaps considerably more over time. At present, however, there is insufficient capacity in the health sector to work substantively on national health insurance. The national health insurance indirect grant has been underspent, the National Health Insurance Fund has not yet been established and the National Health Insurance Bill still needs to be passed by Parliament. It is therefore unlikely that national health insurance will be a significant cost pressure in the medium term."

4. Governance, leadership and management

a) Ministerial superpowers

Another key concern that kept popping up during oral submissions is what some call "ministerial superpowers". One DA MP, Lindy Wilson at one stage said the Bill effectively makes the health minister "the king of NHI".

Among the organisations that flagged the powers the Bill confers on the health minister, the Active Citizens Campaign in their presentation stated that good governance "requires both independence and accountability". Bonginkosi Shozi who presented the submission on behalf of the ACM said the NHI Fund must "be accountable to both Parliament and the executive for the execution of its mandate and the expenditure of its budget, but must retain the independence to function without undue interference from the executive. This means that the overbearing role of the Minister in making appointments to the board and the CEO must be replaced with greater autonomy to the board," he said. Having the minister appointing the board and it being accountable to him, Shozi said, is "frankly bad governance".

Many other organisations reiterated this point proposing that these provisions be removed or amended. But ANC MPs held the line on the minister's powers either by lecturing presenters on the structure of government in a democratic society or simply pleading ignorance. Munyai, for example, reminded presenters that in a democracy a minister had executive power and was accountable to Parliament. "This was the structure of government, so do the presenters have an issue with the minister performing his functions as outlined in the Constitution?"

During another presentation where the same issue was raised, he asked: "Was it the view of MSD (Merck Sharp and Dohme) that the executive powers that the Minister had, in terms of the Constitution, needed to be given by independent people that did not contest elections and would regulate on behalf of the Minister and the Department? In other words, it would be in the interest of the market or business itself? The Minister represented the people, as the Minister was democratically elected," Munyai said.

On concerns about the minister's power to appoint the board and the CEO, Gela reminded presenters that the minister was already (currently) empowered to appoint the boards and CEOs of a number of entities and statutory regulatory bodies that fell under the National Department of Health, so it is nothing new. Elvis Siwela, another ANC MP, said when the ACM talks about good versus bad governance they "seem to suggest that if the minister was involved it would represent 'bad governance'. ACM had stated that good governance required independence and accountability. Independence from whom?" Siwela asked. "Was ACM suggesting that if the Minister was involved there would be no accountability?"

Gwarube told Spotlight throughout the various stages of the legislation-making process (Oral and written submissions) this common theme of the lack of legislative oversight over the functions and powers of the Minister of Health in the Bill has been raised. "Law-making cannot be designed based on the incumbent member of the executive. When designing governance models, one has to look at the worst-case scenario. That is why many organisations and individuals alike have raised the alarm bells about an NHI board that will be appointed by the Minister. Global best practice would be to remove such power and allocate this function to Parliament rather. There seems to be unanimity across all sectors that this is a risk especially following COVID-19 corruption and the R150 million scandal involving the former Minister of Health. This is one of the key flaws of the Bill we have identified and intend to challenge fiercely as the opposition," she said.

b) Corruption

According to Van Staden, the Digital Vibes case demonstrated that the NHI will not be immune to corruption and that it is inevitable that the NHI will be hijacked by corrupt politicians and cadres even before it has been properly implemented. Some organisations such as the National Healthcare Professionals Association proposed setting up an independent special NHI anti-corruption unit. Others, including the South African Medical Association (SAMA), said they welcome the corruption-fighting Investigating Unit as envisaged in the Bill but questioned if it will be effective if the corruption develops within the NHI Fund itself, as the Unit will be unable to confront corruption from within.

SAMA's legal advisor, Dr Willem Oosthuizen said they are concerned that there may not be enough independence. Noting the PPE corruption, Oosthuizen said Parliamentary oversight is not always enough to combat some issues. "Every penny stolen from the population and the health system was a penny that could cost someone their life."

As these concerns around corruption popped up in the submissions, ANC MPs were ready with counterarguments with some suggesting that there are already established anti-corruption measures that can address these concerns. For example, when Deputy Health Minister Dr Sibongiseni Dhlomo was still chair of the committee, he reminded presenters that there is an established health sector anti-corruption forum that was "dedicated to looking into any corruption in health [and] it was made up of various entities, including the Special Investigating Unit (SIU), Police [and] National Prosecuting Authority (NPA)."

Jacobs noted the concerns and suggestions from some stakeholders that the NHI Fund should be externally audited. According to him, however, the NHI Fund would become a schedule 3A entity, "which would be audited by the Auditor-General". (All public entities are classified into different schedules based on their nature and level of autonomy. Schedule 3A entities are normally extensions of a public entity with the mandate to fulfil a specific economic or social responsibility of government. They rely on government funding and public money, either by means of a transfer from the Revenue Fund or through statutory money. As such, these entities have the least autonomy.)

During another presentation by the PSAM and also Section27 and the TAC when similar concerns on corruption were raised, Jacobs reminded the presenters of "clause 20(2)(e) of the Bill, which establishes an investigating unit within the national office of the Fund for the purposes of investigating complaints of fraud, corruption, and other criminal activity. This clause, combined with the SIU led anti-corruption forum, and other mechanisms to prevent corruption indicated efforts of anti-corruption," he said.

But some organisations, while appreciating the anti-corruption provisions in the Bill as well as initiatives such as the Health sector anti-corruption forum, insist more is needed because current measures are more reactionary rather than preventative. Josias Naidoo of the National Healthcare Professionals Council said the Forum had to some extent helped in rooting out corruption. "However, with respect to the COVID-19 pandemic, they realised that they often identified problems well-after the fact - after the money had been eaten away and then it was usually too late. Josias said an independent task team including the NPA and non-governmental organisations could help and pre-empt fraud, abuse of funds, and protect the Fund before money was stolen.

Other common themes

Other common themes that have popped up in many submissions related to implementation issues as well as concerns around monitoring and evaluation. Many organisations including Lawyers for Human Rights, SECTION27 and the Khayelitsha Health Forum, among others, also raised concerns over inclusion, especially of asylum seekers. Head of Health at SECTION27 Sasha Stevenson during their oral submission noted that there were some elements in the Bill that are contrary to the principles of universal health coverage. Stevenson called out issues around the exclusion of asylum seekers and undocumented migrants in the Bill as a regression in access to health services.

Whenever the issue of asylum seekers arose in these oral submissions, ANC MPs generally based their arguments on the constraints of the public purse. In response to SECTION27's oral submission, ANC MP Gela noted that she gets the impression the organisations are "advocating for the perpetual existence of undocumented migrants within the South African borders". Jacobs, in turn in response to submissions by Lawyers for Human Rights, stressed the issue of funding constraints. "The borders of South Africa were currently very porous. A porous healthcare system, without any form of rationing or restrictions for refugees and asylum seekers, could prove detrimental to South African citizens," he said. "It would create serious sustainability issues for the Fund and impact service delivery for all citizens."

Magdelena Hlengwa, IFP MP also hinted at what may be her party's stance on this when she said the NHI would be paid for by South Africans and it was for South Africans. "So, should the country hold the NHI Bill hostage simply because there were concerns about foreigners?" she asked.

Responding to Gela, Stevens said that SECTION27 is not advocating for 'the perpetual existence of undocumented migrants in South Africa' but that the health system must meet the rights for everyone in the Constitution. "South Africa cannot make its health system punitive and try and use it to squeeze out the undocumented migrants," she said. "Everyone had the right to access healthcare services; everyone had the right not to be refused emergency medical treatment. It was not enough to state that there were not enough funds."

When asked how the Committee will decide which inputs to keep and integrate and which not and what he makes of some public perceptions that the legislative process runs the risk of becoming political and ideologically driven, Jacobs acknowledged that it is impossible for the Bill to be everything to everyone. "[So] the Committee will not include all wish-lists from every stakeholder, however, to ensure fairness, the Committee will be issue-focused, rather than specialist centred. This will be done by carefully considering common concerns from all stakeholders in line with the object of the Bill."

*Also read PART 2 on the legislative process so far and what to expect in the coming months.

** Note: A representative from SECTION 27 is quoted in this article. Spotlight is published by SECTION27 but is editorially independent - an independence that the editors guard jealously. Spotlight is a member of the South African Press Council.