4. Request for legal clarification

During the discussion, it was mentioned that at NEDLAC the NHI discussion is that, in principle, funding following function. Amendments will have to be made to the National Health Act to change the provincial functions. The idea is that government will amend inter-governmental responsibilities in the Health Act. The Department of Health is arguing that the level at which services are delivered does not have to be re-specified in the Constitution itself if it be amended in the National Health Act. However, this will depend on whether the National Health Act is itself constitutional.

Ultimately, concerns around inter-governmental relations at the level of service delivery respond to the issue of whether the Bill is primarily focused on financing, service delivery or both. While NHI is presented as a financing model, the Bill goes much further and has significant implications for health service delivery.

The question(s) being posed to Counsel from this section include: • Given the information presented on the NHI Bill in this section and from the roundtable report (earlier section), do concerns about how the NHI Bill deals with inter-provincial relations have legal merit?

We end this brief with a request for legal clarification on the above potential constitutional and legal issues raised by the NHI Bill. In particular, this is a brief for interested and concerned Senior Counsel to provide opinions on the issues and questioned raised in this document.