The High Court in Pretoria has dismissed the Health Minister’s defence of the government’s contentious plans to control where doctors can work. The judgement affirms a previous ruling that deemed the National Health Act’s certificate of need provisions unconstitutional and recommended their removal.
This ruling is significant as the certificate of need is a crucial part of the government’s National Health Insurance (NHI) plans. The Health Department aims to use these measures to regulate where private healthcare facilities and professionals operate, a proposal that has faced strong opposition from the private healthcare sector.
Unopposed
In June 2022, the court upheld an application from trade union Solidarity and six other parties challenging the constitutionality of the act’s certificate of need provisions. In an unusual development, the case was heard unopposed, with only the applicants presenting their arguments.
The Health Minister later successfully applied to have the ruling rescinded, arguing that he had not been adequately informed of the matter. He was subsequently allowed to present his case in court in early June.
Yesterday, Judge Anthony Millar dismissed the minister’s argument that it was premature to hear the matter because the regulations to implement the certificate of need had not yet been promulgated.
Irrational and unconstitutional
The contested sections of the act require healthcare professionals and facilities to apply for a certificate of need from the health director-general, criminalising the provision of health services or operation of a facility without such authorisation.
These certificates would be valid for up to 20 years, with a two-year application period after the scheme’s implementation. Judge Millar criticised the plan as irrational and unconstitutional, stating that there is no nexus between the scheme,, its implementation, and the purpose for which it was enacted.
He argued that it was irrational to assume that withholding certificates in one area would lead to the redistribution or establishment of new facilities in other areas, as the Health Minister had suggested.
The judge described the certification process as a “blunt instrument” intended to reduce the number of private healthcare establishments and professionals in specific areas, forcing them to relocate to approved areas under threat of losing their property and livelihood.
‘Sword of Damocles’
He said the “sword of Damocles hangs over every private healthcare establishment and provider in perpetuity”. Judge Millar further noted that the certificate of need scheme would lead to the arbitrary deprivation of property, impair the right to freely practice a trade, occupation, or profession, and deter investments in private healthcare.
He also highlighted procedural unfairness, as the scheme lacked an adequate appeal mechanism and violated section 25(2) of the constitution by failing to provide fair compensation for affected parties. Solidarity CEO Dirk Hermann stated that the ruling dealt a blow to the NHI, the government’s plan for universal health coverage.
He said NHI in its current format cannot be implemented as the essence of the NHI is central planning, which has now been found unconstitutional. Solidarity has launched a legal challenge against the National Health Insurance Act.