The health department’s ambitions for controlling where doctors work have been dealt a massive blow by the high court in Pretoria, after it declared the National Health Act’s provisions for issuing health establishments with a “certificate of need” unconstitutional and invalid.
The ruling has “serious implications” for the implementation of National Health Insurance (NHI) and the health department would seek a recission of the judgment and challenge the matter in the Constitutional Court said its spokesperson Foster Mohale.
The department first flighted the controversial certificate of need scheme almost two decades ago, promoting it as a means to shore up health services in rural and underserviced urban areas. It has been vigorously opposed by doctors from the outset, who have consistently argued they should be able to work where they choose.
Now the high court has in effect agreed with them, upholding an application brought by trade union Solidarity, the SA Private Practitioners Forum (SAPPF), the Alliance of SA Independent Practitioners Associations (Asaipa) and four individual healthcare practitioners to declare sections 36 to 40 of the National Health Act invalid. They argued the scheme violated the separation of powers, was irrational, prescribed impermissibly vague criteria, and unjustifiably limited several constitutional rights. These included the rights to dignity, freedom of movement and residence, the right to choose a trade or profession, and the right not to be arbitrarily deprived of property.
The applicants named health minister Joe Phaahla, health director-general Sandile Buthelezi and President Cyril Ramaphosa as respondents, none of whom opposed the matter.
In a scathing ruling, acting judge Thembi Bokako said the respondents had “unaccountably refused to participate in the matter ... despite without a shadow of a doubt being aware of the proceedings”. Even if the presidency and the health ministry had each thought the other would respond on their behalf, this was no excuse, she said.
Mohale said the state attorney had been instructed to oppose. “However this was after the matter had been heard. We were waiting for the Office of the State Attorney to indicate who is the state attorney the matter is allocated to as requested from the presidency,” he said.
The health department had instructed the Office of the State Attorney to apply for recission of the judgment, and would oppose the matter at the Constitutional Court, he said.
“This has serious implications as it will limit adequate access to healthcare services to the most vulnerable members of society and will have serious implications for the National Health Insurance and its implementation,” he said.
Bokako’s judgment includes a potentially far-reaching section setting out the care the government needs to take in its efforts to progressively expand access to healthcare services, warning that it would be unconstitutional to erode existing rights.
“That constitutional requirement cannot be met by depriving those who enjoy access to healthcare services of their existing rights ... that is not an improvement of healthcare services; it is only the shuffling of cards already there. That will in all likelihood result in the lowering of healthcare quality in an area,” said the judge.
This section may have implications for the NHI Bill, now before parliament, as the draft legislation proposes scaling back the benefits covered by medical schemes.
Bokako said the certificate of need scheme gave no regard to the wishes and needs of healthcare professionals and allowed the health director-general to view them as “inanimate pawns” in pursuit of the state’s objectives.
No other trade or profession was subjected to the degree of control provided by the act, said the judge.
The ruling will now be considered by the Constitutional Court, which will either ratify it or set it aside.
Angelique Coetzee, a board member of Solidarity’s Doctors Network Advisory Board, said the ruling was very significant. “The certificate of need has been like a sword hanging over our heads. A lot of doctors left SA because of it.”
The ruling had direct implications for NHI, as it would make it difficult for the government to decide where doctors practised, she said.
SAPPF CEO Simon Strachan said the certificate of need was an inappropriate tool for increasing the number of doctors working in underserviced and rural areas. The health department should rather entice people to work in these areas, he said.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.