This assault on freedom must be fought – in the courts and in principle

John Kane-Berman | Aug 19, 2019
Some organisations of doctors have already said they will go to court – the entire private medical industry should follow their example.

There are many uncertainties about the government's proposed national health insurance (NHI) system. Nobody knows how much it will cost. But some things are 99% certain. One is that the African National Congress (ANC) and its government are incapable of running such a system. Another is that it will be overloaded with bureaucrats, deployed cadres, and affirmative-action appointees. It will also be run in the interests of trade unions, not patients.  

The question then is how to avoid this disaster.

The typical response of South African organisations to this kind of ANC initiative is to say ‘we agree with the principle, but not the detail’. Last year, for example, the South African Society of Anaesthesiologists declared their ‘unequivocal’ commitment to the ‘intentions’ of the proposed system. The Council for Medical Schemes said NHI was ‘essential’. The Board of Healthcare Funders said it supported progress ‘to accelerate efforts’ for NHI implementation. Discovery Health said ‘we are supportive of the general approach taken’.

Last week the Health Professions Council of South Africa said the reserves of private medical aid funds should be expropriated, something which the previous health minister also favoured. The Democratic Alliance says aspects of the bill will be ‘catastrophic’, but it also favours ‘removing the medical aid tax benefit’ and allowing medical aids to provide ‘top-up cover’ only, key objectives of the ANC in its war against the medical aids.  

The trouble with this kind of response is that you are fighting on the ANC's terrain. The mining industry made the mistake of doing this with its initial embrace of the mining charter. Sections of organised agriculture are currently making the same mistake in endorsing the supposed need for speedier land transfers. Business in general went along with all the ANC's racial preferencing legislation, the result of which is that ever more racial preferencing is being required, with stiffer penalties for non-compliance.  

Once the ANC has got you to endorse the principle, it has won half the battle. Once you have bought into its ideology, all you can argue about is nuts and bolts. The result is that you find yourself fighting belated rearguard actions (such as taking the latest version of the mining charter to court) as the government ratchets up its demands.

Far from being accepted in principle, the NHI should be fought in principle. Imposing so coercive a system on the country is incompatible with a free society which respects the rights of individuals to make their own choices. It is also yet another attack on the private sector by socialist ideologues posing as friends of the poor. These are the fundamental reasons for opposing NHI, buttressed by all the practical arguments. 

But NHI is also incompatible with the Constitution. The proposed new system will supposedly promote equality, one of the ‘founding provisions’ of the Constitution. But another founding provision is the advancement of human rights and freedoms. The State is required to ‘respect, protect, promote, and fulfil’ these.

You do not advance freedom by limiting choice. You do not advance it by removing rights. You do not advance ‘freedom of trade, occupation, and profession’ by imposing limitations on the rights of doctors, causing more of them to emigrate. You do not promote the rights of persons ‘to control over their body’ by empowering bureaucrats to tell them what medical procedures they may or may not have. You do not promote ‘access to health care services’ by setting up the one run by the State as the only one in town, because you have destroyed the medical aid industry. You do not promote ‘freedom of association’ by destroying that industry.  

The Constitution allows some rights to be limited, but only if the limitations are ‘reasonable and justifiable’. There is nothing reasonable or justifiable about destroying private medical aids, especially when wider access to quality healthcare could easily be implemented in accordance with the ‘less restrictive means’ the Constitution requires before allowing for limitations upon rights.  

The Constitution requires the State to take ‘reasonable and other measures, within its available resources, to achieve the progressive realisation’ of rights that include access to ‘health-care services’. There is nothing ‘reasonable’ about using financial or any other kinds of coercion to force everyone into a monopolistic healthcare system run by a callous, corrupt, and incompetent government. 

How the courts would react to challenges to the NHI based on the Constitution cannot be foreseen. But they provide a vital forum in which this reckless power grab can be fought. Some organisations of doctors have already said they will go to court. The entire private medical industry should follow their example, and not fall victim to the ANC's divide-and-rule tactics. It should make use of both the courts and public opinion in the battle for its own survival in the interests of every citizen in the country. And the major medical companies should come up with the necessary funds. 

 

Kane-Berman is a policy fellow at the IRR.

 

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