Lawyers representing trade union Solidarity and private doctors spent hours on Tuesday trying to convince Constitutional Court judges to confirm a court order which found provisions of the National Health Act, which controls where doctors work and where health facilities are established, invalid.
Last year, the Pretoria high court declared sections 36 to 40 of the act invalid. The sections provide that doctors and healthcare facilities need to obtain a certificate of need from the director-general of health before rendering services.
The act aims to decentralise healthcare access and ensure rural areas, which have little or no access to doctors and medical facilities, get access. The state plans to use the sections to get practitioners and health facilities to migrate to rural areas.
The health director-general has the power to withdraw or decline an application from a health facility or a doctor wishing to set up a practice at a particular place. Facilities that already exist also have to apply for the certificate or face fines or imprisonment.
Greta Engelbrecht, representing Solidarity and private doctors, argued the sections gave the health director-general immense power which is intrusive to the constitutional rights of health practitioners.
“No health agency or establishments will be allowed to operate without the certificate. This includes hospitals, medical practices, dental rooms, nursing homes and clinics.
“In the hands of the director-general will lie the ability to refuse them the ability to continue to operate. If we make it so difficult for the practitioners here, will they stay?”
The judges quizzed Engelbrecht on the importance of healthcare access to people in rural areas while balancing that with protection of healthcare providers’ rights.
Engelbrecht said the government cannot shift its constitutional mandate to provide healthcare services to those in need by compelling private practitioners to work in rural areas.
Judge Jody Kollapen said the case was fundamentally important not just for healthcare but the country’s transformation.
“Imagine someone living in a village deep in Sekhukhune may also be looking at this case with hope and expectation that their lives would change through the provision of healthcare services.
“You [Engelbrecht] do say, this case is not about access to healthcare or denying the grave injustice that millions of people face; you say it is not about that,” Kollapen said.
“You say the responsibility of the state to provide healthcare is not one that must be fostered to private healthcare practitioners.
“Where there is a pool of resources and a huge need across the country, are you saying individual rights, the rights to your profession, freedom of movement will always trump the transformative objectives?”
Engelbrecht said if the certificate of need had the objective to achieve transformation in the way envisaged, then the state needed to build a strong enough case to justify limitation of rights. In this case, she argued, the government failed.
Engelbrecht told the court that in general the government’s laws were drafted poorly and made it easy for those against transformation to legally challenge the state.
Bruce Leech, representing the Hospital Association of SA, told the court all parties agreed the legacy of the apartheid government was an unequal society. He argued the government, however, could not legally force the private sector to do the state’s job of ensuring people get healthcare.
He said there might be more lawful ways the private and public sector could tackle the issue of access to health.
While the provisions of the act have similar objects to National Health Insurance, which aims to provide a universal health system scrapping the financial condition from accessing healthcare, the two laws are different.
The sections, though in the act for 20 years, have not been in effect because the regulations which will guide the implementation process have not been finalised.
Ngwako Maenetje, appealing the high court order, argued that Solidarity was asking the court to speculate into the future because the sections were not implemented.
The court reserved judgment.
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