National Health Insurance (NHI) Bill: Negotiating Mandate

Meeting report

The Chairperson greeted Members of the Committee and officials in attendance.

The officials included Mr Nicolas Dias, Legal Services, Department of the Premier Western Cape; Dr Saadiq Kariem, Chief Operating Officer, Western Cape Department of Health and Wellness; and Ms Lailah Najjaar, Clinical Service Improvement, Department of Health and Wellness.

The Committee noted the apology of Mr T Klaas (EFF).

The Chairperson expressed his deep gratitude to the officials for having compiled the matrix report and for having done an excellent job dealing with the public hearing process logistics.

The Chairperson explained why there was a delay which resulted in the provincial mandate of the Western Cape not being heard in the National Council of Provinces (NCOP) on 14 and 17 November. The public hearing process had concluded on 30 October. On 1 November, the Committee had written a formal request to the Chairperson of the NCOP requesting an extension to deliver the Western Cape mandates based on the volume of submissions the province had received. The province explained that giving a comprehensive mandate and adhering to the given timelines was impossible. So far, there was no response to that letter despite the Committee’s numerous reminders, including two in writing.

He outlined the agenda of the meeting which was to consider and deliberate on the negotiating mandate for the National Health Insurance (NHI) Bill [B 11B-2019]. Committee Members had received the submissions from the provincial public hearing process. Those submissions were distributed electronically on 14 November. Members would have read through them if they read about 60 pages a day. The Chairperson asked Members to provide input on the Bill.

Discussion
Ms R Windvogel (ANC) did not want to comment on the Bill itself but on the process. She complained about the Committee doing what it wants and disregarding rules. When there is a deadline, the Committee simply could not proceed without getting permission from the NCOP. The fact that the Committee had gone ahead despite that is incorrect.

The Chairperson noted her input and did not want to comment further on that. He said the Committee has followed all due processes, which was on the record. From the DA’s side, he can also attest to that.

Mr C Fry (DA) disagreed with Ms Windvogel’s remark that the province behaved like a country on its own in this process. He thanked the Western Cape Department of Health and Wellness [the Department] for its very intricate and detailed submission. The submission highlighted concerns with many clauses in the Bill and recommended that the Committee should consider those concerns when it drafted its final mandates

Ms A Bans (ANC) said that there was not much to do at this stage now but to indicate if a Member supported the Bill or supported it with amendments.

Mr D Plato (DA) said many good inputs were raised by stakeholders ranging from the business sector to the community level as well as from the government sector and the public. He expressed his concern about the possibility of creating another monstrous entity in South Africa. Although he understands the argument to look after the poorest of the poor and mainstreaming health, the procurement, which would be taking place at the national level, is a huge concern and would be the ground for rampant corruption. If one looks at similar entities in the country, such as Eskom, Denel, Post Office, SASSA , etc. they are all in a state of collapse. He feared that the NHI entity would be heading in the same direction.

Ms N Bakubaku-Vos (ANC) said she was concerned with Mr Plato’s remark. Fraud is happening everywhere. In the Western Cape, the provincial government milks poor people through the increasing electricity charges. If DA truly cared about the poor, Mr Plato would not have said what he had said. Mistakes have happened in those entities, but Members must not forget that similar mistakes are also happening in the Western Cape. She urged Members to support the Bill if they truly care about people.

Ms Windvogel said it was unfortunate if any Member did not support the Bill. Her personal experience was that her government PARMED medical aid savings had been exhausted. Now, she had to either fork out R7k a month for medication or go into the overburdened public health system. It is commonly observed that patients whose health savings are exhausted are sent back to the public health sector. This Bill will help the most vulnerable population. She said public servants and representatives should not only be concerned about protecting the interest of the middle class. She wondered why Mr Plato had forgotten to mention the very successful HIV programme which had faced similar controversy when it was first initiated. She was confident that the NHI Bill would work.

Mr Fry supported the principle of universal health coverage but did not think the Bill would achieve that. The Bill seeks to centralise the power at the national level which is a dangerous precedent to start with. Looking at all the NHI pilot programmes, they are not doing well. Based on that, he would not support the Bill in its current form.

Ms Windvogel interrupted Mr Fry and said that 90 percent of the piloting programmes perform well.

Ms Bans said the Committee had travelled extensively across the province to listen to the public’s inputs. She suggested that if Members would have to sit here and read the comments individually, so be it. Else, they would bicker over the views on what communities have said. Members are here to represent what communities have said.

The Chairperson said the Committee has been dealing with the Bill since 4 August, when Dr Crisp from the national department had presented the Bill to the Committee. The Committee subsequently went through all those public hearings. Some of the submissions are eloquent and well-motivated. But he said he did not see a plan or where the funds would come from. Though it is widely accepted that universal health coverage is a right, he still believed that more work should be put into it before the NHI’s implementation.

Responses from WCPP Legal Advisor
Adv Romeo Maasdorp, Legal Advisor, Western Cape Provincial Parliament, said no specific legal question has arisen from the public submissions. But he said he has been assigned to the Committee regarding this Bill and has been part of the process. He has been listening to and reading the submissions. He had fully read the 600-page document. He acknowledged the indisputable principle of universal health care that everyone should have equal access to health services. However, the people differed in their opinions on the operationalisation of the Bill. Also, there are credible observations pertaining to legal concerns. Those observations are varied:

Conflicts with existing legislation: For example, if one looks at how the Bill envisages a centralised procurement mechanism, notwithstanding existing legislation on public preferential procurement, the Bill, with all its romantic goals, does not explain that disjuncture.

Constitution: The Constitution imparts certain responsibilities and competencies to provinces, which in turn causes provinces to craft and pass legislation to give effect to those competencies, some of which are concurrent with national legislation. On the face of it, the Bill seems to undermine the existing constitutional role, imperative and mandate of provinces.

Timelines: Adv Maasdorp said it was fortunate that South Africa has a vigilant, diligent and conscientious Constitutional Court that guides us to ensure that law-making practice is comprehensive, extensive, inclusive and transparent. The Committee is the lawmaker of the province and should be familiar with Doctors for Life International v Speaker of the National Assembly and Others, Mogale and Others v Speaker of the National Assembly and Others, etc. as well as the imperative it places on this province, this legislature and what rests with it. In this case, the Committee needed more time and involvement from the public, who will be impacted by this Bill.

The [definition of] public includes corporate South Africa, and that sector must be listened to. There should be no distinction to be drawn in terms of the value, the credibility or the acceptance of submissions from an ordinary member of the public and from the corporate sector. He said the Committee’s request for additional time was legitimate. The Committee should not to rush through things because of self-orchestrated timelines. He said the lack of response of one legislature to the formal request from another legislature for an extension of timelines is rude, impolite, and dismissive. It did not help this legislature of lawmakers ensure its process was sufficiently extensive and inclusive to make the outcome (as we wanted it to be) credible. He said there would be credible legal red flags among submissions that militate against the Bill.

Responses from Western Cape Government
Mr Dias stated that the submission of the Western Cape Government on the Bill contained both legal and policy comments.

Dr Kariem said he could only make comments related to the technical aspects of the Bill. He would leave the opinions on the Bill to Committee Members as it was a political matter. He pointed out the impact of the uncertainty of the role of provincial departments of health under the NHI. Central hospitals – Groote Schuur, Red Cross and Tygerberg – are a key aspect of the provision carried out by the provincial health department in the Western Cape. Those three hospitals alone make up 27 percent of the provincial health budget. They play an important role in the provision of health services in the Western Cape. The World Health Organisation (WHO) and other authorities acknowledge the referral pathway which begins at the community level [and leads] into the central hospitals. For that to work effectively, that whole ecosystem needs to function well as a single entity. Between Tygerberg and Groote Schuur, they provide not only tertiary hospital services but also secondary hospital functions which is about 44% general specialist services. Those are part of the ecosystem which shows how the health system operates and how the province plans, coordinates and manages under the National Health Act. The provincial department would need more details on how all those functions would be affected if everything is now brought under the auspices of the national department under the NHI.

The provincial health department is very serious about its stewardship role in the Western Cape. The department has regular engagements with stakeholders in the private health sector. In the following week, about 70 people who represented different sectors in the private sector would have an engagement with the provincial health department. Both the public and the private sectors accept the stewardship role which the Western Cape health department plays.

The third issue that requires clarity is the district health management office and the contracting units for primary health care (CUP). There is an official piloting site for CUP in Knysna. The Department works collaboratively with its colleagues in the national counterpart in accordance with the objectives of CUP. One of the central issues is looking at the relationship between public and private and the ecosystem. But there are a lot of details that need to be unpacked such as service benefits packages, payment mechanisms, etc.

The fourth concern is what the Western Cape health department viewed as the NHI’s downstream impact on the social determinants of health. The provincial department had commented on various social issues such as violence prevention, mental health, TB, etc.

He concluded by saying that the 636-page submission contained a lot of technical issues such as where the decision-making power would be vested, operational aspects, and the significant impact on how provincial departments would operate.

Further Discussion
Mr Plato emphasised the importance of improving the localised and provincial-wide health service system and disagreed with the centralisation approach underpinning the NHI Bill. He remarked that the Western Cape has good health services and needs to make it even better. The NHI Bill does not serve that goal of betterment. There was a lack of information on the impact of centralising health functions to the national government level. There is no mention of its impact on the powers of provincial health ministers. Although he acknowledged that there are good aspects in the Bill, he cannot support the Bill in its current form due to the unaddressed key concerns that he had mentioned. There was a widely held view among the public that the content and inputs that arose from the public participation had not been taken on board and fully considered by the government. Mr Plato accused the NCOP of deliberately pushing the Bill through before the election without due consideration.

Ms Windvogel interrupted him, to which he responded that Ms Windvogel should respect him and his time and not interrupt him. Mr Plato concluded that the Committee needed to state to the NCOP that the public hearing process in the Western Cape has not yet been concluded.

Ms Bans said her earlier suggestion might have been misinterpreted as support for the Committee to prolong the public participation process. She clarified that this was not the case and she wished to retract her earlier input. She disagreed with members of the DA and argued that the public hearing process could not continue indefinitely. The moment has come now for the Committee to make a political decision on the Bill. As for her, she supported the Bill but with amendments as mandated by the communities from different sectors that she represented.

Clause-by-clause deliberation
The Chairperson said that since the NHI Bill is national legislation, the provincial committee cannot make changes to the Bill. What it can do is make recommendations and suggestions on the Bill. Only the Select Committee of the NCOP can make those changes at this stage.

The Chairperson quickly took the Committee through Clauses 2 to 59. No Member made any input comment on those clauses.

Mr Fry, Mr Plato and the Chairperson did not support the NHI Bill.

Ms Windvogel supported the Bill and requested to have her view registered as a minority view in the Committee report.

Negotiating Mandate
The Standing Committee on Health and Wellness, as designated by the Western Cape Provincial Parliament, resolved that it would confer the power to its NCOP delegate to not support the Bill. The Standing Committee noted that the ANC had expressed its minority view to support the Bill. That minority view was included in the Committee report.

The Committee report was duly adopted.

The Chairperson adjourned the meeting.