Minister’s ‘overweening power’ in NHI Bill could be challenged

A major discussion point arising out of the proposed National Health Insurance (NHI) Bill has been the “overweening” power the Bill grants the Minister of Health – one of the many issues of concern put forward by health sector legal expert, Dr Debbie Pearmain, when presenting possible legal challenges to the Bill to her Institute of Risk Managers (IHRM) webinar audience on Friday.


“There are many sections in the Bill that provide overweening powers to the Minister that could potentially be challenged as unconstitutional,’ said Pearmain, citing, in particular, the term “this Act” in the definition section: “The words ‘This Act’ includes any directive or rule made or notice issued by the Minister and directive issued by the Fund,” she noted, explaining that this meant that the Minister’s rules and directives override any other laws such as the Medical Schemes Act,  Public Procurement Act and the Health Professions Act.

“That is not allowed! It is actually constitutionally incorrect because legislation always trumps regulations and regulations trump rules and directives. The Minister, therefore” Pearmain explained, “cannot be given the power to effectively make law that trumps other legislation that has been passed by Parliament.”


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The Minister, according to the Bill, can veto the Fund’s purchasing decisions, its design of “healthcare service benefits” decisions, “and the fund’s best practices etc. in terms of referral networks.” 

“In other words, the Fund is totally tied down. It cannot operate in terms of normal corporate governance because the Minister is basically a political appointee, not an expert, not an employee of a national executive, but basically a politician.

“The Fund,” Pearmain concluded, “is being treated like a child of the Minister who can have a say and have control of everything the Fund does. This is a disaster waiting to happen!”

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