CHRISTOPHER W MPEHLE | A fund without a strategy

In May I argued in these pages that the National Health Insurance (NHI) Act’s real weakness is not its ambitions and intentions but its architecture. That its financing had been deferred rather than designed. Nearly four months on, I want to extend that argument, because the deferral is no longer only a financial one. It has become a strategic one.

Consider where we stand. The Constitutional Court heard the public participation challenges that were brought by the Board of Healthcare Funders and the Western Cape government from May 5 to 7 and reserved judgment. At the time of writing, no ruling has been handed down and no date has been announced.

Before that hearing, the president and health minister undertook not to proclaim or implement any section of the act pending judgment, an undertaking made an order of court in February. The act is law, and the act is frozen. We have been standing still for six months.

Standing still is not in itself an act of failure. Litigation on this scale was entirely predictable. What should concern us is what is being done with the pause. The health department has budgeted a staggering R74m to defend NHI litigation in the current financial year, spread across roughly 15 cases at R2.5m-R3m each.

That is a legitimate use of public funds; the state is entitled to defend its own statute. But there is an imbalance that is worth highlighting and naming plainly. We have a fully costed litigation strategy and yet no comparable funding strategy. We know what it will cost to defend the act, but we do not know what it will cost to operate it.

That distinction is one our debate continues to miss. A statute confers authority, but it does not confer capability. The act creates a fund and instructs it to purchase healthcare “strategically” — the phrase appears in the legislation — but strategic purchasing is not a legal construct. It is an operating function and a demanding one.

The performance of this requires the responsible parties/individuals to be able to accredit and contract many thousands of providers, set and defend prices, design payment mechanisms that do not simply reward volume, register and verify a population, adjudicate claims at a national scale and detect fraudulent activity in something close to real time. Every one of the above-mentioned capabilities takes years to build. None of them is created by a commencement notice.

Here is the part that ought to concentrate minds: not one of them depends on the outcome of the court case. If the act is upheld, the state will need these capabilities immediately. If it is set aside and returned to parliament for a proper participation process, the policy does not die with it. Section 27 does not go away, and no serious party in this country has abandoned universal health coverage.

The state will require the same capabilities under whatever instrument follows. Capability is the part of the plan that is indifferent to the actual ruling, which is precisely why it should be under construction now rather than later.

Some of this work is happening, and it is instructive where.