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The National Health Insurance Bill B11 of 2019 (the Bill) has garnered considerable comments, questions and, views from laypeople and legal commentators alike. The overarching concerns surrounding the Bill involves its constitutionality. These concerns are not arid abstractions. Somewhat banal but noteworthy is the exclusion of ‘asylum seekers’ and ‘illegal foreigners’ from ‘health care services’ coverage. In particular, s 4(2) of the Bill states that asylum seekers and illegal foreigners are only entitled to ‘emergency medical services’ and ‘services for notifiable conditions of public health concern’. Good citizens will pause here and flip through ch 2 of the Bill of Rights contained in the Constitution.
It is trite that our Constitution fares up there with the most progressive Constitutions in the world because it guarantees the Rolls-Royce of fundamental human rights rooted in the ideals of human dignity, among others.
Section 27(1)(a) of the Constitution states that:
‘Everyone has the right to have access to –
(a) health care services’ (my italics).
This is where we must ask: Is a law that deliberately excludes a person from access to health care services constitutionally suspect? If so, are there compelling logical policy imperatives for such deliberate exclusion that can be regarded as justifiable limitations under s 36 of the Constitution? These questions, arguably, would make for some interesting jurisprudential tap-dancing in the courtroom.
Health care services versus emergency medical services
A proper ventilation of the above questions requires a closer look into the scope of health care services in comparison with emergency medical services and ‘services for notifiable conditions of public health concern’. The textualists approach is to have regard to the definitions given to these concepts. The Bill defines ‘emergency medical services’ as ‘services provided by any private or public entity dedicated, staffed and equipped to offer pre-hospital acute medical treatment and transport of the ill or injured.’ Lexical semantics would open a Pandora’s Box for this definition in the Bill. Nevertheless, the Bill then proceeds to define ‘health care service’ as –
‘(a) health care services, including reproductive health care and emergency medical treatment, contemplated in section 27 of the Constitution;
(b) basic nutrition and basic health care services contemplated in section 28(1)(c) of the Constitution;
(c) medical treatment contemplated in section 35(2)(e) of the Constitution; and
(d) where applicable, provincial, district and municipal health care services.’
Again, this definition does not contribute to our understanding of the health care services purported to be covered by the National Health Insurance Fund (NHI Fund), which will be established, as much as towards our asking: ‘What is health care services for purposes of the Bill?’ As regards ‘services for notifiable conditions of public health concern’, the Bill is mum on this – thereby most likely leaving it to the discretion of the NHI Fund to decide on a case-by-case basis.
The White Paper on ‘National Health Insurance Policy’ (GN627 GG40955/30-6-2017) recognises that the South
African health system is organised into three areas of health care service delivery, namely –
Health coverage for asylum seekers and illegal foreigners starts and stops with emergency medical services. At a general level, primary health care and hospital and specialised services include continuum coverage for sexual and reproductive health, rare diseases and dread diseases. Emergency medical services coverage include pre-hospital care for, in Madala J’s words in Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC), a ‘dramatic, sudden situation or event which is of a passing nature in terms of time.’
This contextual setting is vital in measuring the degree of exclusion of asylum seekers and illegal foreigners from access to health care services. In particular, these classes of persons will not be covered and will not have the privilege of the NHI Fund’s backing in accessing sexual and reproductive health, rare diseases and dread diseases health care services, among the matrix of health care services. At the very least, primary health care level coverage for asylum seekers and illegal foreigners would be sensible. Primary health care level is the first point of contact with the health system and associated with fewer visits to specialists and to emergency rooms. This would allow asylum seekers and illegal foreigners to present at the primary health care level with any health care requirement (whether for promotive, preventive, curative; rehabilitative, palliative or community-based mental health). At this stage, the Bill remains mum about the scope of ‘services for notifiable conditions of public health concern’, being what it promises to asylum seekers and illegal foreigners in addition to emergency medical services. One can reasonably deduce that whatever these services are, they are not health care services as defined above, otherwise this would be in expressed terms in the Bill.
Everyone as passenger
The s 27 omnibus has many passengers. But its most famous passenger is ‘everyone’ who was born in Sharpeville on 10 December 1996. The Cambridge Dictionary defines this passenger as ‘every person’; I might add, irrespective of creed, nationality and even legality of being in South Africa (SA). This much can be gleaned from Sachs J’s seminal judgment, S v Makwanyane and Another 1995 (3) SA 391 (CC), wherein he noted that ‘everyone’ includes, in the context of that case, the most abominable of human beings. The venerable reasonable person (revered by courts for centuries) would, therefore, struggle for reason not to extend the same attitude or thinking in the context at hand, that is: Political refugees and illegal foreigners are ticket holders in the s 27 omnibus.
The objective of the Bill is illustrative. It succinctly and judiciously provides that it is intended to achieve universal access to quality health care service in SA in accordance with s 27 of the Constitution through the NHI Fund. The Bill also cites two notable international law instruments to bolster its objective. In the first instance, it draws from art 12 of the International Covenant on Economic, Social and Cultural Rights 1966, which provides for the right of ‘everyone’ to the enjoyment of the highest attainable standard of physical and mental health. Secondly, it draws from art 16 of the African Charter on Human and People’s Rights 1981, that is couched in substantially similar language to art 12 of the International Covenant. South Africa is bound to both of these international instruments. Any crevice in local legislation or policy framework that does not incorporate the ideals articulated in these international instruments and the Constitution deserves due scrutiny.
Viewed through these lenses, any legislative provision or policy framework that suggests that we have not reached that high plane of constitutional morals that permit us to extend the same privileges to the people of the earth who are in SA illegally that we extend to those within SA legally should and ought to be constitutionally questioned. Simply put, a deliberate exclusion of a person, any person, from access to health care services is constitutionally suspect.
Justifiable exclusion
Constitutionally speaking, the rights enshrined in the Bill of Rights can be limited. In terms of s 36(1) of the Constitution, the general requirements for the limitation of any right is that it may be limited only in terms of law of general application ‘to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. The reference to ‘law of general application’ gives effect to the formal aspects of the rule of law or legality, namely that all limitation must be authorised by legal rules. In investigating the second part of the general test that refers to the reasonableness and justifiability of a limitation of the right, the factors in s 36(1)(a) to (e) of the Constitution must be taken into account.
It is conceivable that in the interrogation of the justifiability of the exclusion of a person from accessing health care services, one may not even need to reach as far as s 36 of the Constitution. It is accepted as a truism that the obligations imposed on the state by s 27 are dependent on the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources.
From a cost perspective, National Treasury’s projections as set out in the Green Paper on ‘Policy on National Health Insurance’ (GN657 GG34523/12-8-2011), which were derived from a model of aggregate costs built on projected utilisation based on demographic trends, cast the National Health Insurance (NHI) costs in 2025 in the region of R 256 billion (in 2010 terms). The escalation is 6,7%.
This is of relevance in this discussion because one could argue that the NHI Fund cannot accommodate asylum seekers and illegal foreigners above and beyond emergency medical services due to cost implications. For conservatists, this would represent a compelling policy imperative for the deliberate exclusion. After all, Chaskalson P in Soobramoney noted that the state’s primary obligations under s 27 should be considered within the context of its ‘available resources’. As such, where there is a lack of resources and/or an undue burden on the state’s fiscus, as a result of widening certain guaranteed rights to a broader population, this would be a justifiable limitation of the right to have access to health care services under s 36 of the Constitution. That said, this tested argument would, arguably, be unsustainable in light of the funding structure envisaged for the NHI, which will be made up of a ‘tax mix’, among other things. Under the tax mix are tax instruments that can be classified as direct or indirect taxes. A direct tax is a tax imposed on a source of income (eg, personal income tax, corporate income tax). An indirect tax is imposed on the use of income (eg, consumption expenditure), such as goods, services or financial flows.
In light of this and while I do not seek to downplay the significant costs associated with the NHI, clearly an envisaged workable funding structure is intended to accommodate a significant number of the population in SA. Statistics South Africa shows that 4% of the population in SA constitutes migrants, of this percentage, approximately 1,8% are undocumented (the so-called illegal foreigners). The debate of this short piece centres on the 1,8%, which could be accommodate by the NHI Fund, at most, for capped primary health care. Any open and democratic society based on human dignity, equality and freedom would have upended these values if any contention that the carving out of asylum seekers and illegal foreigners from a constitutionally guaranteed right is at all constitutionally sustainable and we should turn a blind eye.
The right of everyone to have access to health care services is not a cosmetic right; it is a fundamental right whose limitation should not come lightly. Any policy framework and law that holds otherwise is on a collision course with the s 27 omnibus.
Sphesihle Nxumalo LLB (Wits) is a legal practitioner at Baker McKenzie in Johannesburg. This article was written in his personal capacity and the views expressed herein do not represent the opinions of his employer or any organisation whatsoever with which he is associated.
This article was first published in De Rebus in 2020 (Jan/Feb) DR 11.
