The National Council of Provinces (NCOP) failed to consider two crucial provincial reports on the National Health Insurance (NHI) Bill, making a mockery of parliament’s constitutional obligations to facilitate public involvement in the law-making process, the DA-led Western Cape’s counsel told the Constitutional Court on Wednesday.
The NCOP’s select committee on social services did not receive a report from Gauteng and ignored the one submitted by the Western Cape, said Geoff Budlender.
The apex court is this week hearing two separate challenges to the NHI Act that focus on the extent to which MPs considered public input on the contentious legislation.
The Board of Healthcare Funders (BHF) has taken aim at how the National Assembly’s portfolio committee on health handled the process, while the Western Cape provincial government has homed in on the work of the NCOP’s select committee on social services. Both applicants have asked the Constitutional Court to declare the NHI Act invalid.
The act breathes life into the ANC’s plan for universal health coverage and aims to establish a single, government-controlled fund that will pay for all the services provided under NHI. Among its most controversial provisions are those limiting the role of medical schemes to offering cover only for services that are not provided by NHI.
But it has also drawn fire from critics for the lack of detail on the benefits it will cover and how it will be financed.
The substance of the act is not under legal attack from the Western Cape, said Budlender.
Public hearings conducted by parliament have to be capable of influencing the outcome of the legislation under consideration, but there is no evidence that those held by the NCOP in Gauteng had any effect on the select committee’s work, Budlender told the court. Neither a written nor oral report on the Gauteng public hearings on the NHI Bill was presented to the committee, he said.
Turning to the Western Cape, he said its report on the public hearings it conducted was clearly ignored, since the select committee voted on the NHI Bill before its document had been submitted.
Public participation must mean listening, considering, engaging and remaining open to persuasion, especially where legislation affects provincial powers, patients, healthcare professionals, taxpayers and the future of the entire health system.
— DA leader Geordin Hill-Lewis
The Western Cape was “perplexed and aggrieved” by what transpired, as its report contained detailed, clause-by-clause analysis of the bill and proposed amendments that were never considered, he said.
Minutes from the meetings at which the select committee received the negotiating mandates and final mandates of the provinces reflected no discussion of potential amendments or any debate on the NHI Bill, he said.
‘Box-ticking exercise’
“Of course it would have taken time for the select committee to consider the proposed amendments, but that was its job. It’s simply not enough, for a bill of this complexity, for the public participation process in the NCOP to be as cursory as it was,” he said.
DA leader Geordin Hill-Lewis said major reform cannot be pushed through parliament as a “box-ticking exercise”.
“Public participation must mean listening, considering, engaging and remaining open to persuasion, especially where legislation affects provincial powers, patients, healthcare professionals, taxpayers and the future of the entire health system,” he said.
Homing in on the content of the NHI Act, he said centralising power, money and decision-making would not build a better health system. “The lesson of state capture, failing hospitals, broken procurement systems and collapsing public services is clear that concentration of power without competence does not produce better health outcomes,” he said.
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