Is there a light at the end of the NHI tunnel?

03 November 2014 Michelle David, Norton Rose Fulbright

National Health Insurance (NHI) has been debated in South Africa for decades. In 1994, the African National Congress’ (ANC) National Health Plan proposed creating a single comprehensive, equitable and integrated National Health System based on the principles of equity and the right to health, with an approach focussed on primary healthcare. The debate culminated in the issuing of the Green Paper by the Department of Health on 12 August 2011.

At the time the Minister of Finance, Pravin Gordhan, indicated that the White Paper on the NHI programme would be made available before the election on 7 May 2014. The Minister indicated in February this year that the White Paper was ready to be tabled at Cabinet. The White Paper has not yet been made available to the public.

In his Medium Term Policy Budget Statement, Current Minister of Finance, Nhlanhla Nene, stressed that NHI remains a priority despite delays in publishing policies which outline the manner in which it will be regulated or funded. National Treasury gave no indication as to the reason for the delays or an indication as to when the White Paper would be made available.

The Minister did however indicate in his policy statement that the future introduction of the NHI could imply a significant restructuring of inter-governmental fiscal relations in the health sector, and that such considerations would be examined by a high-level working group that would make recommendations to the Minister's committee on the budget.

No clear picture yet

It is clear that there is still some work to be done before we fully understand exactly how NHI is intended to work. Although the mechanisms around NHI may still be unclear, the process regulating the Green Paper translating into the White Paper and ultimately into legislation is one which is clear.

Before the NHI programme becomes law, these are the steps which are yet to happen:

• The Green Paper has been published and comments have been provided.
• This leads to the development of a more refined discussion document, a White Paper, which is a broad statement of government policy.
• This may be drafted by National Health together with assistance from National Treasury and a task team and the relevant parliamentary committees may propose amendments or other proposals.
• After this, it is sent back to the Ministry for further discussion, input and final decisions.

From a White Paper to a Bill

Once all relevant inputs have been taken into account, the Minister and departmental officials draft the legislative proposals. These are usually in the form of a Draft Bill and an explanatory memorandum.

The Minister will submit these documents to the Cabinet in order to obtain approval for the introduction of the Bill in Parliament. A Bill is a draft version of a law. Most Bills are drawn up by a government department under direction of the relevant Minister or Deputy Minister. The Bill must be approved by the Cabinet before being submitted to Parliament.

From a Bill to an Act

Before a Bill can become a law, it must be considered by both Houses of Parliament, the National Assembly (NA) and the National Council of Provinces (NCOP). It is published in the Government Gazette for public comment, and then referred to the relevant committee. It is debated in Parliament and amended if necessary.

If the Bill passes through both the NA and the NCOP, it goes to the President for assent where it will be signed into law. Once it is signed by the President, it becomes an Act of Parliament and a law of the land.

It appears from the process which is required to enact legislation that it will take some time before the NHI programme becomes a law as we are still at the Green Paper stage. In the meantime however, the industry is waiting for the next step in the process.


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