High court ruling ‘has serious fallout for NHI’

The department of health’s ambitions for controlling where doctors work have been dealt a huge 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 department of health will seek a rescission of the judgment and challenge the matter in the Constitutional Court, said spokesperson Foster Mohale.

The department 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, 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 and four individual health-care 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, and the right to choose a trade or profession.

The applicants named health minister Joe Phaahla, directorgeneral 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”.

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.

“This has serious implications as it will limit adequate access to health-care 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 health-care services, warning that it would be unconstitutional to erode existing rights. “That constitutional requirement cannot be met by depriving those who enjoy access to health-care services of their existing rights ... that is not an improvement of health-care services; it is only the shuffling of cards already there. That will in all likelihood result in the lowering of health-care 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 director-general to view them as “inanimate pawns” in pursuit of the state’s objectives.

Angelique Coetzee, a board member of Solidarity’s Doctors Network Advisory Board, said the ruling is 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 has direct implications for NHI, as it will make it difficult for the government to decide where doctors practise, 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 department should rather entice people to work in these areas, he said.