No to harmful health law amendment, Parly told

BY STAFF REPORTER

The proposed amendment to the Medical Aid Societies Regulations (SI330 of 2000), is problematic, harmful and also stands in the way of public health access while infringing on several rights including property, Parliament heard on Tuesday.

In its oral submission to the Portfolio Committee on Justice, Legal and Parliamentary Affairs, the Association of Health Funders of Zimbabwe, presented concerns that the proposed amendment raises issues that go beyond health policy and called for a halt to the proposed amendment in its current form.

AHFoZ also requested the Committee to call for an independent legal, economic and health-system impact assessment be conducted before any structural prohibition is considered.

The association also pleaded with Parliament to have IPEC and the Competition and Tariff Commission assess whether any prudential, governance, conflict-of-interest or competition concerns exist and, if so, whether they can be addressed through targeted remedies rather than compulsory divestiture.

Other recommendations include that affected medical aid members, societies, employees, patients and providers be consulted before any final policy decision is taken and that Parliament consider a proportionate regulatory framework focused on transparency, governance, member protection, tariff discipline and competition oversight rather than compulsory divestiture.

“AHFOZ’s respectful position is that the proposed amendment is legally vulnerable, constitutionally problematic and practically harmful.,” the association told the Parliamentary Committee on Tuesday.

“We therefore ask the Committee to intervene by ensuring that any reform of this nature proceeds only through a lawful, evidence-based and consultative process that protects members, preserves access to affordable healthcare and upholds the authority of Parliament.”

The association raised several problematic areas the proposed amendments carry saying: “It raises fundamental questions of legality, constitutional compliance, delegated legislative authority, property rights, competition regulation and the proper role of Parliament in approving far-reaching changes to the legal architecture governing medical aid societies.”

“The proposed amendment would prohibit medical aid societies, their subsidiaries or related entities from owning, managing, operating or holding interests in healthcare service-provider assets. It would also require affected societies to submit divestiture plans and dispose of existing interests within a prescribed period. In practical terms, the amendment would dismantle existing integrated healthcare models through which medical aid societies have invested member-funded resources in clinics, pharmacies, laboratories, hospitals and related healthcare infrastructure,” the association told Parliament.

The invitation to appear before the committee came after the association requested the intervention and scrutiny in relation to the proposed amendment.

AHFOZ has also engaged the Parliamentary Portfolio Committee on Health and Child Care on the subject.

“Our central submission is that the proposed amendment should not be supported in its current form. It is vulnerable to challenge because it appears to be ultra vires the Medical Services Act, inconsistent with the limits placed on subsidiary legislation by section 134 of the Constitution, disproportionate in its interference with property and economic rights, and likely to undermine rather than promote access to affordable healthcare. If reform is required, it should proceed through primary legislation after proper parliamentary debate, evidence-based impact assessment, consultation with affected members and coordination with the Competition and Tariff Commission.”

On its constitutionality, the association argued that “a measure that compels divestiture of healthcare infrastructure, reduces available service capacity, disrupts existing care networks and risks increasing out-of-pocket costs must be carefully justified.”

The proposed amendment, Parliament heard, directly affects property rights as medical aid societies have, over time, invested member-funded resources in healthcare infrastructure.

“These investments include shares, facilities, equipment, operating platforms and related business interests. Section 71 of the Constitution protects the right to acquire, hold, use, transfer and dispose of property. The forced divestiture of existing interests, or a regulatory measure that renders those interests unlawful or commercially unsustainable, amounts to a serious interference with property rights,” the association said.

“Such interference must be lawful, reasonable, necessary and justifiable. It must also be proportionate to a legitimate public purpose. A blanket prohibition does not distinguish between harmful conduct and beneficial integration. It does not assess whether a particular facility harms competition, restricts patient choice or compromises clinical independence. It simply requires structural separation regardless of the facts. That approach risks being arbitrary and disproportionate.”

“The Committee is respectfully asked to consider whether it is constitutionally permissible for subsidiary legislation to compel the disposal of lawfully acquired assets without a clear statutory basis, without compensation mechanisms, without individualised assessment and without a demonstrated public-interest justification.”

The proposed amendment is also against the public interest and a danger to public health care provision, according to the association.

“The proposed amendment should be tested against the public interest. In the healthcare context, the relevant public-interest questions are whether the measure improves access, affordability, quality, continuity of care, system capacity and financial protection for members. On those criteria, the proposed amendment is deeply concerning. Medical aid societies entered service provision because of practical market failures, including tariff instability, shortfalls, refusal by some providers to accept medical aid cards, limited infrastructure and the need to create predictable access routes for members. Integrated facilities have served as access backstops and price stabilisers. Removing them may increase dependence on third-party providers, weaken cost containment, increase shortfalls and force higher contributions or reduced benefits.