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NHI: The Constitutional Framework

NHI: The Constitutional Framework. Dr D L Pearmain BHF Conference 2009. Varied Reactions to the NHI Debate. They’ll Never Get It Right.

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NHI: The Constitutional Framework

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  1. NHI: The Constitutional Framework Dr D L Pearmain BHF Conference 2009

  2. Varied Reactions to the NHI Debate

  3. They’ll Never Get It Right Van den Heever, the most articulate of the critics, says flatly that "SA cannot afford the proposal". He estimates the administrative costs of an NHI would be a minimum of R8bn/ year. He also views the required increase in the health budget of R80bn-R100bn as "fiscally ludicrous and without precedent", the implications for tax policy as not "thought through", and the time frames for the revitalisation of hospitals as completely unrealistic. http://www.fm.co.za/09/0731/cover/coverstoryb.htm

  4. Let’s Fight It Wake up young South Africans! Defend your rights, and those of your children and their children – to choose your own health care and how you want to spend your hard-earned money. It’s your choice. Don’t let a smothering bureaucracy take over and decide for you. Make your voice heard! http://www.freemarketfoundation.com/ShowArticle.asp?ArticleType=Issue&ArticleId=2641

  5. HOW Are They Gonna Get it Right? Economist and Dean of Research at the University of the Western Cape Professor Renfrew Christie questioned whether economists or actuarial scientists had run the numbers and shown NHI was feasible. http://www.health-e.org.za/news/article.php?uid=20032310

  6. You Go Government! Adila Hassim, head of litigation at the AIDS Law Project agreed there was widespread support for some form of NHI, and welcomed the renewed commitment to equity and accessibility of health care serviceshttp://www.health-e.org.za/news/article.php?uid=20032310

  7. It’s Not Realistic As the plan currently stands, it is not realistic, Broomberg says. “Our economy cannot afford to provide the comprehensive package of health services that can currently be bought through medical aids, to everyone in the country. This means NHI will only be able to provide a limited range of services to the entire population.”http://www.health24.com/medical/Condition_centres/777-792-2002-2006,50318.asp

  8. It Will Cost Too Much Van den Heever is scathing about the likely administrative costs of the NHIA and its likely capacity to carry out its onerous functions. "Using the SA Social Security Agency (Sassa) as a proxy, which has a budget of R4bn/ year, the NHIA, which proposes to engage in vastly more complex activities, is likely to have a minimum budget of R8bn/ year - 400% more than what is spent administering the district health budget at present," he says. http://www.fm.co.za/09/0731/cover/coverstoryb.htm

  9. Let’s Talk About It Business Unity SA chief executive officer Jerry Vilakazi told the HASA conference the private health care sector should be prepared to discuss the matter with the department of health. "As the private sector we dare not walk away if we fail to make our positive contribution otherwise we will run the risk of being saddled with a significant, far reaching policy which doesn't take into account the valuable contribution the private sector can make to making health care more equitable” http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20090605163600229C306553

  10. So Why Is Govt Doing It?

  11. The Public Sector Isn’t Perfect • In the last decade public funding declined leading to serious under-staffing of the public health sectors, with many important staff positions remaining vacant. • In many areas access has increased but quality has deteriorated. The country is faced with a heavier burden of disease, shortage of human resources, poor management of health institutions, poor financial management and inadequate funding, and deteriorating infrastructure. • Furthermore, while many of our public hospitals have been refurbished and management improved, there are also many public hospitals which experience management failure related to employment of incompetent managers. http://www.samedical.org/index.php?option=com_content&task=view&id=791&Itemid=330

  12. But Neither Is the Private Sector There is a widely held view that the private healthcare sector will not be sustainable beyond five years, despite its being well-resourced. There are a number of reasons for this. The cost of health care in the private sector has rocketed out of control, bringing with it numerous challenges. Over the past 10 years, private hospital costs have increased by 121%. Specialist costs over the same period increased by 120%. A major increase has also been seen in non-healthcare expenditure by medical schemes. Broker fees, for example, are exorbitant. And despite medicine pricing regulations that have seen a decrease of 24% in the spend on pharmaceutical products in real per beneficiary terms, contribution rates per medical scheme beneficiary have nonetheless doubled over a seven-year period. Prof Morgan Chetty ‘How Sustainable Is South African Private Health Care?’ http://www.bizcommunity.com/Article/196/148/34815.html

  13. The President We will introduce a National Health Insurance Scheme (NHI) in a phased and incremental manner. In order to initiate the NHI, the urgent rehabilitation of public hospitals will be undertaken through Public-Private Partnerships”. (State of the Nation Address) This is all in line with the ANC 52nd National Conference 2007 Polokwane resolution that: “reaffirmed the implementation of the National Health Insurance System by further strengthening the public health care system and ensuring adequate provision of funding.”

  14. Dr Zweli Mkhize We are aware of the debates in the media which are obviously not based on facts because no details of such plan have been officially announced by government. The debates are not only ill-informed but highly speculative. We are also aware that the debates are coming from a few individuals from specific sectors of the private sector, who have vested interested in maintaining the status quo in which the majority of our people continue to struggle in accessing quality health care ─ a Constitutional and a basic Human Right.…We need to acknowledge the role of each of the sectors but seek a solution to correct the sortcomings. For that we require a sober and evidence-based debate, not an alarmist and confrontational discourse that we have currently characterises the debate in the media. http://www.health-e.org.za/news/article.php?uid=20032347

  15. The Minister of Health • The present system of healthcare financing can no longer be allowed to go on, because it is simply unsustainable. • In the 2007/8 budget, 8.5% of the Gross Domestic Product was spent on health, 5% catered for 7 million people in private health care and the remaining 3.5% catered for 41 million people in state health. Nowhere in the civilised world would one find a similar state of affairs. • “The present model of healthcare financing is just outright primitive, and we are going to abandon it.”

  16. South African Medical Journal That the present health system is neither rational nor fair is widely recognised, and the real debate has been about how best to structure and fund an alternative health care system that is both equitable and feasible. Daniel J Ncayiyana http://www.samj.org.za/index.php/samj/article/viewFile/1452/848

  17. The Rule of Law Section 1 of the Constitution ordains South Africa as a democratic State founded on the supremacy of the Constitution and the rule of law. It is, therefore, axiomatic that, as the highest law of the country, anything that is inconsistent with it is invalid. Section 2 of the Constitution: This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

  18. Obligations of the State • The State must respect, protect, promote and fulfil the rights in the Bill of Rights. • The Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State.

  19. The Right of Access to Health Care Section 27 of the Constitution Everyone has a right of access to health care services including reproductive health care No-one may be refused emergency medical treatment The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right.

  20. Obligations of the State In Grootboom the Constitutional Court stressed that insofar as socio-economic rights are concerned – “The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programmes implemented by the Executive. “

  21. Constitutional Requirements The goal of the Constitution was, however, that the basic needs of all in our society be effectively met and the requirement of progressive realisation meant that the State had to take steps to achieve this goal. That meant that accessibility had to be progressively facilitated, involving the examination of legal, administrative, operational and financial hurdles which had to be lowered over time.

  22. Obligations of the State Both the content of the obligation in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of resources. There is a balance between goal and means. The measures must be calculated to attain the goal expeditiously and effectively but the availability of resources is an important factor in determining what is reasonable. Government of The Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)

  23. Obligations of the State These policies and programmes must be reasonable both in their conception and their implementation. The formulation of a programme is only the first stage in meeting the State's obligations. The programme must also be reasonably implemented. An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the State's obligations. Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)

  24. Obligations of the State A dispute concerning socio-economic rights is thus likely to require a Court to evaluate State policy and to give judgment on whether or not it is consistent with the Constitution. If it finds that policy is inconsistent with the Constitution it is obliged in terms of s 172(1)(a) to make a declaration to that effect. But that is not all. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant 'appropriate relief'. It has wide powers to do so and in addition to the declaration that it is obliged to make in terms of s 172(1)(a) a Court may also 'make any order that is just and equitable'. Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC)

  25. Obligations of the State Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights. (Fose v Minister of Safety and Security1997 (3) SA 786 CC)

  26. Reasonableness Though illness strikes the rich and the poor alike, its impact on the poor is aggravated by harsh living conditions and what is frequently the extreme difficulty of getting access to health care and medication. Hence the duty on the State to take special measures to assist those who are the most vulnerable to disease and, simultaneously, the most lacking in resources. Minister Of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another As Amici Curiae) 2006 (2) SA 311 (CC)

  27. Reasonableness • The standard of reasonableness is used as a measure throughout the Constitution, notably in regard to the fulfilment of positive obligations to realise social and economic rights, and with respect to permissible limitations of protected rights. • Reasonableness is capable of being determined objectively. Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign And Another As Amici Curiae) 2006 (2) SA 311 (CC)

  28. Other Constitutional Requirements Furthermore, the Constitution requires that everyone must be treated with care and concern. (Grootboom) There is a constitutional obligation to facilitate public involvement in the legislative process The duty to facilitate public involvement in the legislative process is an aspect of the right to political participation. International and regional human-rights instruments provide a useful guide in understanding the duty to facilitate public involvement in the context of our country. I consider it necessary therefore to refer to the right to political participation as understood in international law. Doctors For Life International v Speaker of the National Assembly And Others 2006 (6) SA 416 (CC)

  29. Public Participation Commitment to principles of accountability, responsiveness and openness shows that our constitutional democracy is not only representative but also contains participatory elements. This is a defining feature of the democracy that is contemplated. It is apparent from the Preamble to the Constitution that one of the basic objectives of our constitutional enterprise is the establishment of a democratic and open government in which the people shall participate to some degree in the law-making process. Doctors For Life International v Speaker of the National Assembly And Others 2006 (6) SA 416 (CC)

  30. So Let’s Participate • Intelligently • Constructively • Co-operatively • Effectively • Responsibly • Wisely • Maturely

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