National Health Insurance
Legal and Constitutional Imperatives

The purpose of this series of policy briefs on National Health Insurance (NHI) and the related IMSA web-site is to put in the public domain material and evidence that will progress the technical work of developing a National Health Insurance system in South Africa. This includes tools for costing NHI and evidence on where savings could be achieved in moving to a future mandatory system with universal coverage.

This policy brief deals with defining the package of health benefits for a mandatory insurance system. It reviews the history of work done in South Africa since 1994 on this issue and suggests a model for thinking about the interaction between benefit design, affordability and delivery efficiency.

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In a document prepared by the Council for Medical Schemes for the Prescribed Minimum Benefit (PMB) review process, the relationship of the minimum package to legislation and the Constitution is outlined. “Section 3(1) of the National Health Act places the responsibility on the Minister of Health to, within the limits of available resources, develop the policies and measures which will protect, promote, improve, and maintain the health of the population. The Act specifically requires the Minister to ensure the provision of essential health services, which must include at least primary healthcare services, to the population.”
“Section 27 of the Constitution states that everyone has the right to access healthcare services, inclusive of reproductive healthcare, and that no one may be refused emergency medical treatment. The section requires of the State to take reasonable legislative and other measures within the grasp of its resources to progressively realise these rights. In addition, section 28 of the Constitution specifies that children have the right to access basic healthcare services.”

“In accordance with section 36, these rights may be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom. In the context of a developing country with limited resources, the progressive realisation of these rights to healthcare services requires an effective and equitable process. It is therefore required that this PMB review must be aligned with the progressive realisation of the right to healthcare of the population.”

In the South African Health Review of 1998 a detailed account is given of a significant Constitutional Court decision in the matter of Soobramoney v Minister of Health, KwaZulu-Natal. “The appellant was a 41-year-old diabetic suffering from ischaemic heart disease, cerebrovascular disease and irreversible chronic renal failure. It was common knowledge that his life could be prolonged by regular renal dialysis. He did not have sufficient resources to continue renal dialysis in a private health facility, and so he sought dialysis treatment from Addington State Hospital in Durban.”

“However, due to a shortage of resources, the hospital could only provide dialysis to a limited number of patients. The hospital therefore developed a set of guidelines to determine eligibility for the dialysis programme. The appellant, who suffered from other cardiac and cerebrovascular complications, was not eligible for the dialysis programme in terms of these criteria and so was denied treatment by the hospital. In July 1997, the appellant made an urgent application to the Durban and Coast Local Division of the High Court for an order directing Addington Hospital to provide him with ongoing dialysis treatment. The application was dismissed, and the matter was brought on appeal to the Constitutional Court.”....

“Sachs J ... held the opinion that “the rationing of access to life-prolonging resources is . . . integral to, rather than incompatible with, a human rights approach to health care.” As a consequence, the appeal was dismissed, notwithstanding the Court’s recognition of the “hard and unpalatable fact . . . that if the appellant were a wealthy man he would be able to procure such treatment from private sources.”

“This decision of the Constitutional Court is of considerable importance for health service delivery in South Africa for a number of reasons. First, it limits the Constitutional guarantee against refusal of emergency medical treatment to immediately necessary and available remedial treatment in respect of dramatic, sudden events which are of a passing nature in terms of time. Secondly, the Court accepted that rationing of resources is integral to health service delivery in the public sector, notwithstanding the fact that this would perpetuate inequities between the private and public sector. Thirdly, the Court expressed its deference to executive authority by declaring itself slow to interfere with rational decisions taken by competent health authorities regarding allocation of resources. The Court implied, however, that there might be grounds for challenge of executive policies if such policies were unreasonable or if they were not applied fairly and rationally.”

Mark Heywood, the Executive Director of the AIDS Law Project, has in more recent years written extensively on the issue of the relationship between human rights and health. The interested reader is referred to his concise and very helpful work.

Contact Details:

Innovative Medicines SA
Val Beaumont

P.O. Box 2008
Houghton, 2041

Tel: +27 11 880-4644

Fax: +27 11 880-5987

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