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The questions around the access to COVID-19 vaccines have raised debates globally and the challenges of the vaccination roll outs in South Africa (SA) have left the majority of citizens uncertain as to when they would be eligible to be vaccinated, as well as the location of vaccination sites (OECD Policy Responses to Coronavirus (COVID-19) ‘Access to COVID-19 vaccines: Global approaches in a global crisis’ (www.oecd.org, accessed 1-9-2021)). ‘Despite calls for solidarity and social justice during the pandemic, vaccine nationalism, stockpiling of limited vaccine supplies by high-income countries and profit-driven strategies of global pharmaceutical manufacturers have brought into sharp focus global health inequities and the plight of low- and middle-income countries (LMICs) as they wait in line for restricted tranches of vaccines’ (K Moodley, M Blockman, D Pienaar, A J Hawkridge, J Meintjes, M-A Davies and L London ‘Hard choices: Ethical challenges in phase 1 of COVID-19 vaccine roll-out in South Africa’ (2021) 111 South African Medical Journal 554).
The debate on access to medicine by developing countries has been raging since the latter half of 2020, with SA and India leading the charge (Hilde Stevens and Isabelle Huys ‘Innovative approaches to increase access to medicine in developing countries’ (2017) 4 Frontiers in Medicine 218). The constraints in the developing and manufacturing of vaccine in Africa has been extensively debated. There is also a need for the relaxation or waiver of certain sections of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement to enable this realisation.
The World Trade Organization (WTO) has been seized with the issue of a waiver of ss 1, 4, 5, and 7 of Part II of the TRIPS Agreement. This is to ensure that the developing countries can manufacture vaccines without falling foul of the provisions of the TRIPS Agreement and that there be a continued waiver for most of the world’s population that has developed immunity since exceptional circumstances exist, justifying a waiver from obligations of the TRIPS Agreement (WTO ‘Members approach text-based discussions for an urgent IP response to COVID-19’ (www.wto.org, accessed 1-9-2021); WTO ‘Waiver from certain provisions of the Trips Agreement for the prevention, containment and treatment of Covid-19’ (https://docs.wto.org, accessed 1-9-2021)).
The World Health Organization (WHO) has been supportive of this campaign on a waiver of certain TRIPS Agreements to facilitate the manufacturing of COVID-19 vaccines in the LMICs. The same goes for the WTO.
According to the Department of Health, three platforms would be used to deliver vaccines in Phase One (South African Government ‘COVID-19 Coronavirus vaccine strategy’ (www.gov.za (accessed 1-9-2021)). These include work-based programmes, outreach-based programmes and vaccination centres (see South African Government (op cit)). It was further pointed out that the same programme would be used during Phase Two and Three of the roll-out (see South African Government (op cit)). Of critical importance was mention of the fact that there would be additions of vaccinations at the public primary healthcare facilities.
This is in addition to the use of private hospitals and medical centres for vaccination of all people subject to agreement with both medical providers and medical schemes for the benefit of all, irrespective of whether one has medical aid or not (see South African Government (op cit)).
The purpose of this article is to look at whether the use of private hospitals and medical centres, among other strategies of ensuring access to vaccine for all, align with s 27 of the Constitution and may be argued as contribution towards the realisation of access to health for all through the National Health Insurance (NHI).
This question arises in the backdrop of SA’s current two-tier system and the anticipated health reform through the NHI informed by the Universal Health Coverage (UHC) (WHO ‘Universal health coverage (UHC)’ (www.who.int, accessed 1-9-2021)).
Health sector reforms do not only require attention to specific components, but also a supportive environment in which they can be implemented (Peter O Otieno and Gershim Asiki ‘Making Universal Health Coverage Effective in Low- and Middle-Income Countries: A Blueprint for Health Sector Reforms’, www.intechopen.com, accessed 14-10-2021). In LMICs, there is still much to be done to ensure that people receive prioritised healthcare services (see Otieno and Asiki (op cit)). Despite LMICs spending an average of 6% of their gross domestic product on health, they have made minimal impact on vaccine roll-out compared to high-income countries (see Otieno and Asiki (op cit)). The implementation of healthcare reforms is a gradual process with complexities; hence, the need for a vision and long-term strategies to realise the desired goals. South Africa is no exception (Winnie T Maphumulo and Busisiwe R Bhengu ‘Challenges of quality improvement in the healthcare of South Africa post-Apartheid: A critical review’ (www.ncbi.nlm.nih.gov/, accessed 1-9-2021)).
Most of the LMICs have set the UHC as an aspirational goal for national health sector reform (see Otieno and Asiki (op cit)). The dimensions of the UHC as envisaged by the WHO comprise of three key elements –
South Africa launched the COVID-19 Vaccination Programme Registration Portal on 16 April 2021 (South African Covid-19 Vaccination Programme Registration (https://vaccine.enroll.health.gov.za, accessed 1-9-2021)). The Electronic Vaccination Data System (EVDS) is available to the public and invites all citizens to register regardless of whether one has a medical aid or not (see South African Government (op cit)). The launch marked a significant milestone not only for the vaccination campaign but also for advancement towards the UHC (see South African Government (op cit)). This will be the first time in the democratic history that a major public health campaign will be supported by one digital system for all South Africans (see South African Government (op cit)). The system is, therefore, a proud representation of the future of healthcare in the country, under the NHI, which is typified by multi-sectoral collaboration and social solidarity (see South African Government (op cit)).
‘This is in line with the 9th pillar of the Presidential Health Compact, which commits to strengthening the health system by developing an information system that will guide health policies, strategies, and investments. Some of the key activities proposed in the presidential health compact have found expression in the development and establishment of the EVDS system for the general population’ (South African Government ‘Minister Zweli Mkhize: Launch of EVDS Registration for COVID-19 Vaccination: Citizens Aged 60 and Above’, www.gov.za, accessed 13-10-2021).
The above system was developed and aligned with the envisaged NHI scheme. It seeks to develop ‘a system that complies with the Interoperability Standards for Digital health’, ‘capitalising the functionality of the South African Health Information Exchange Service’. This is to allow for – the ‘secure sharing of data between the different systems that make up the [EVDS]’; ‘the development and implementation of procedures and systems for identity verification of users of the health system (both those in public and the private sector)’. This also includes expanding the capabilities of the Health Patient Registration System platform and ‘utilising the Business Intelligence Platform and the Data Lake functionality to standardise health outcomes reporting for both public and private sectors’ (South African Government (op cit)).
The NHI is a ‘health financing system that is designed to pool funds together to provide access to quality and affordable personal health services for all South Africans based on their health needs, irrespective of their socio-economic status’ (National Health Insurance Healthcare For All South Africans (www.hst.org.za, accessed 1-9-2021)). ‘The NHI Bill was presented to and approved by Cabinet in July 2019, and has been presented to Parliament’s health portfolio committee.
It has since been subjected to an extensive public consultation process through committee roadshows and is scheduled for further parliamentary debates before it is presented to the president for promulgation [as an Act]’ (Businesstech ‘The end of medical aids in South Africa – and other questions raised around the NHI’ (https://businesstech.co.za, accessed 1-9-2021)).
Regardless of concerns expressed over speed and efficiency of the roll out of vaccines, the fact remains that a single-payer healthcare system would relieve the financial burden for most South Africans and a burden mostly carried by marginalised communities. ‘Data from Statistics South Africa … showed that more than 47 million South Africans did not have medical aids, with just 9,4 million people enjoying the benefit’ (Kabelo Khumalo ‘At least 47 million South Africans are without medical aid cover’ www.iol.co.za, accessed 1-9-2021)). Critics of the NHI have asserted that government wants to disrupt a private healthcare system that is working efficiently, and that government should not infiltrate the private health care unaided as this reduces the burden of providing healthcare (Department of Health ‘Some Key Messages on National Health Insurance (NHI)’ www.health.gov.za, accessed 1-9-2021)).
It is not accurate that the private healthcare is a system that is working efficiently. ‘This assertion is a simplification of facts. For starters, a system of health cannot be said to be working well when it serves only a tiny minority in the population (only 16% of South Africans) and excludes the overwhelming majority (84% of South Africans). Secondly, the cost of private healthcare is spiralling out of control with the results that the medical aid contributions (premiums) are increasing more than the [Consumer Price Index] while the benefits to patients are reducing at a very fast pace. This is the only sector in the socio-economic arena that is [impacting its members in this negative manner]. By 2030, if nothing is done to financially protect households, middle income households are likely to spend a third of their income on premiums for medical aid’ (Department of Health (op cit)).
As the Bill of Rights, in particular s 7(2) provides that ‘the state must respect, protect, promote and fulfil the rights in the Bill of Rights’, the government seeks to implement the UHC through the NHI. The collaboration by government and the private sector in rolling out vaccines firmly establishes government’s commitment towards the UHC (Carmen S Christian ‘How the private sector can support South Africa’s COVID-19 vaccine rollout’ (https://theconversation.com, accessed 1-9-2021)).
The UHC, as envisaged through the NHI, is different from the current two-tier system and the government is aiming at a radical departure towards access to health cover for all. The UHC specifically entails covering each citizen with a health financing system that is equitable to all citizens, whereas the current two-tier system has the effect of providing some form of healthcare to citizens without considering equity or what type of health care all citizens are presently getting. On the other hand, the private healthcare system provides the services of private medical experts and facilities and is partially funded through private medical schemes and insurance (Department of Health (op cit)).
In essence, one cannot divide the country into free but inadequate medical care for the poor and high quality but highly subsidised health care for those who can afford it (Tanja Gordon, Frederik Booysen and Josue Mbonigaba ‘Socio-economic inequalities in the multiple dimensions of access to healthcare: the case of South Africa’ (2020) 20 BMC Public Health 289). The partnership between the public and private healthcare in utilising facilities as vaccination centres, is a sign of commitment to the ideals of the NHI and proof of how the UHC can be attainable under the NHI, under government control.
Contrary to popular belief, private medical schemes will continue to exist, but their roles will change (Department of Health (op cit)). ‘When the NHI is fully implemented they will provide cover for services not reimbursable by the NHI Fund’ (Department of Health (op cit)).
Medical schemes are a voluntary arrangement for those who choose to and can afford them or those caused to join them, through for example employer contracts (see Department of Health (op cit)).
‘The private health care providers will definitely continue to operate [under the NHI dispensation]. Contrary to popular belief, NHI is not going to abolish or do away with private health providers. However, they will operate under a completely different environment created by NHI. For instance, NHI will not allow them to charge the exorbitant fees they are charging today, especially the private hospitals. Certain practices will not be allowed under NHI. For instance, a health care provider will not be allowed to start treating you and then discard you or send you away after he/she has exhausted all your funds.
Under NHI, private [healthcare] providers will no longer be allowed to charge you [additional fees] called co-payment after NHI has paid them’ (see South African Government (op cit)). ‘Under the present system, a private [healthcare] provider may charge you [additional fees over] and above what your medical aid has paid them’ (Department of Health (op cit))’. Section 27(3) of the Constitution, which states: ‘No one may be refused emergency medical treatment’, will strictly be applied under the NHI. The roll out of vaccines under the current arrangement between public and private health sectors is an indicator of such a move towards the UHC in a collaborative way of ensuring access to health cover for all.
The NHI is not a contest between the public and the private health sectors, but it is a system to make both sectors serve the whole population in co-operation rather than in competition.
As one appreciates and learns about the infusion of both sectors in efforts to vaccinate all citizens, one must echo the commitments made to achieve the UHC, which go beyond vaccinations. The commitments go to building a strong primary healthcare system and ensuring essential services are maintained in the normal course and during times of crisis.
The COVID-19 pandemic demands global solidarity and a shared global responsibility to protect everyone under the achievement of the UHC. It is, therefore, important to make sure that those who need the vaccine most get it first, irrespective of whether they belong to a medical scheme or not. The public and the private sectors should not be treated as separate entities. The healthcare system should operate with the values of solidarity and the UHC, which is the perfect lens for planning, monitoring, and assessing our success.
The collaboration between the public and private health sectors, through public and private health institutions, demonstrate, how through well-crafted policies and legislation, an enhanced objective towards the UHC can be attained.
Pritzman Busani Mabunda BProc (UDW) LLB (Wits) LLM (Labour Law) (UNIN) MPhil (Medical Law and Ethics) (UP) Dip Advanced Banking (RAU) Dip in Criminal Justice and Forensic Auditing (RAU) Certificate in Sports Law (UCT) Certificate in Admin & Const Law (UCT) PhD Candidate (UP) is a legal practitioner and Director at Mabunda Inc and Dr Llewelyn Gray Curlewis BLC (UP) LLB (UP) LLM (Procedural Law and Law of Evidence) (UP) (Cum Laude) LLM (Labour Law) (UP) LLM (Commercial Law) (Unisa) LLD (Criminal Law) (UP) is a legal practitioner and lecturer at the University of Pretoria.
This article was first published in De Rebus in 2021 (Nov) DR 14.
