According to the Competition Commission’s enquiry into the private healthcare market in South Africa, the private health industry is characterised by a lack of competition, rising prices, minimal transparency and disempowered users. Yet the quality of care in the public sector is often lacking, despite the efforts of dedicated doctors and nurses. Along with the challenges faced in both the public and private healthcare industries, plans to create National Health Insurance limps along.

Conducted over four and a half years with a preliminary report published in July 2018, the Competition Commission recommended altering the range of medical scheme benefit options to increase comparability between schemes and increase competition in the market. A supply-side regulator to implement this change was another of its recommendations.

The proposed National Health Insurance will also affect the medical scheme industry.

The NHI Bill was sent back to the Health Department for another rework in December 2018. The Bill has begun a process of far-reaching health reforms that should create universal health coverage (through the NHI fund that would buy services on behalf of patients that are then free at the point of care). How medical schemes (which currently provide cover for around nine million people) will fit into the NHI system is unclear.

Changes to the Medical Schemes Act are also being made, especially related to co-payments, Prescribed Minimum Benefits, and the proposed abolition of broker fees. Additionally, the medical scheme industry is not supposed to be profit-making, which legislative changes hope to make clear. Brokers, for example, will have to work to prove that their fees – previously constituting as much as R90 of a member’s monthly contribution – are justified in relation to value.

Around 80 percent of South Africans are currently dependent on state healthcare. A balance between curbing high costs in the private sector and improving  the quality of care in the public sector must be struck.

Finalising the two draft Bills will bring some clarity. But 2019 is an election year, so the battle of ideologies regarding a national healthcare system may be delayed further.

The country is not in a position to implement the NHI as was originally contemplated, and certainly not on the timing that was initially proposed.

Legislators have a huge job because the health industry is embedded in a tangle of at least 12 pieces of legislation, of which the Medical Schemes Act is just one.

There is also the discussion document from the Law Reform Commission’s inquiry into medical negligence and related litigation to consider. It highlights the significant medico-legal challenges faced by the public health sector. Proposed amendments to the State Liability Act, allowing for payment of damages awards in instalments under certain conditions, was met by substantial opposition in submissions made to Parliament.

Even if funds were available to implement the NHI, the huge backlog of medico-legal cases against public healthcare institutions must be urgently dealt with, along with an increase in the quality of  healthcare provided in the public sector. The contingent liabilities faced by government for damages claims in the healthcare industry means that billions of rands are spent on court awarded damages or on settlements annually; money that could be better spent on  improving healthcare quality and the facilities that provide them. However, with money diverted to the backlog of claims, less is available to improve the current state of affairs, and we are left in a cycle of poor service delivery, leading to even more claims against the State. While the biggest tally of medical negligence cases heard by the Supreme Court of Appeal in the latter part of last year was in keeping with the trend that obstetricians and gynaecologists make up the most litigated against medical speciality, the court has reiterated in a number of judgments that an adverse heath outcome – even a birth injury – does not, necessarily, imply causative negligent conduct on the part of the health professional. The balanced approach of the courts is a bright spark in a healthcare industry fraught with challenges, pending changes and disagreement as to how to bring about reform for the benefit of all.