This week’s Pretoria high court judgment overturning the certificate of need that would control where doctors work and where healthcare facilities are established had nothing to do with the National Health Insurance (NHI) scheme as some had asserted, health minister Aaron Motsoaledi said in a statement.
The National Health Act that contained the requirement for a certificate of need predated the NHI Act by 20 years, the minister said.
The court ruled that the National Health Act’s certificate of need provisions were unconstitutional and should be struck down.
This was expected to affect the government’s plans for NHI as the requirement for a certificate of need would be used by the department to manage where private healthcare facilities and healthcare professionals provide their services.
Judge Anthony Millar was scathing in his assessment of the plan, which he said was irrational and unconstitutional. “There is no nexus between the scheme and its implementation and the purpose for which it was enacted,” he said.
It was irrational to assume that withholding certificates for one geographical area would result in the redistribution or establishment of new facilities in other areas as the health minister had argued, he said.
The certificate of need scheme would result in the arbitrary deprivation of property, impair the right to freely practise a trade, occupation or profession, and deter investments in private healthcare, the judge said.
The sword of Damocles hangs over every private healthcare establishment and private healthcare provider in perpetuity.
— Judge Anthony Millar
“The sword of Damocles hangs over every private healthcare establishment and private healthcare provider in perpetuity.”
Motsoaledi said he differed with the finding of the court. The sections of law ruled unconstitutional were in the National Health Act 2003. “These provisions were drafted 20 years before the NHI Act. They have nothing to do with the National Health Insurance, which is being established by the NHI Act. It is purely mischief to assert a connection and is a part of the deliberate campaign to discredit the NHI.”
Motsoaledi said he struggled to understand “how a right to health by all people in our country interferes with other people’s rights to own property”, and said even though the Constitutional Court would have to confirm the ruling of unconstitutionality, the health department would “still consider all our options including an appeal”.
“We note that while we execute our mandate of provision of healthcare as a human right, the court seems to have placed economic property rights at the expense of the right to health. It is very unfortunate that while we live within the borders of the same country we seem to be existing in two different worlds — one world where it is believed that the right to health must reign supreme and the other world of economic property rights for the privileged few, where the welfare of human beings counts for nothing,” the minister said.
“For our part as a department we will at all times take the side of the poor,” the minister stressed.
Motsoaledi said he was concerned and disappointed by the “misleading” media headlines that characterised the judgment as a huge blow to the NHI.
“There is a legitimate government purpose served by the introduction of this certificate of need, contrary to what is being said. Certificate of need is meant to achieve two important objectives — to regulate the quality and standard of healthcare being provided in a particular facility and to determine whether an intention to put up a facility, extend the facility, increase the number of beds or put some [in] particular equipment is appropriate for that area,” Motsoaledi said.
“It is because of this legitimate government purpose that many other countries also have a certificate of need.” He cited the examples of Australia, Canada, India, Malaysia, New Zealand, Nigeria, Philippines, Singapore, Sri Lanka, Tanzania, Uganda and the UK among other countries.
Motsoaledi noted that Health Market Inquiry instituted through the Competition Commission had raised concern about the absence of a coherent licensing regime and recommended that to address unequal access to healthcare a standardised centralised licensing regime should be implemented.
He also pointed out that the Pharmacy Act provided for the same objectives as the sections of the National Health Act declared unconstitutional by the court. Rules regulated where pharmacies could be established.
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