Health minister to get his day in court

Health & Science Correspondent

The high court in Pretoria has rescinded a far-reaching judgment that scuppered the health minister’s plans for determining where doctors work, saying he should be given an opportunity to have his day in court.

The case centres on the “certificate of need” provisions in the National Health Act and is important because these measures are an integral part of the government’s plans for National Health Insurance (NHI).

Under NHI, the ANC’s policy for achieving universal health coverage, the health department intends to manage the distribution of health services by requiring doctors and health facilities to obtain a certificate of need before they can establish or expand a practice.

Acting judge Thembi Bokako last June upheld an application by trade union Solidarity and six other parties challenging the constitutionality of the act’s certificate of need provisions, set out in sections 36-40.

In a surprising turn of events, the matter was not opposed by the minister and the judge only heard arguments from Solidarity and its co-applicants. Bokako ruled in a default judgment that sections 36-40 of the act were unconstitutional and invalid

and should be set aside.

The health department said at the time that the minister had not been notified of the proceedings, and applied to both the Constitutional Court and the high court to have the ruling rescinded. The constitutional court said in December that the lower court should decide on the matter.

In a ruling handed down on June 14, judge Brenda Neukircher agreed with the department’s argument that the minister had not been properly informed when Solidarity instituted legal proceedings. The applicants had failed to comply with court rules that set out how the sheriff of the court may serve papers initiating proceedings on a respondent, she said.

When the sheriff of the court attempted to serve notice of motion on the minister of health and was told by the receptionist at the minister’s office that no one in the legal department was available, the sheriff left without serving the papers on anyone.

The emails sent by the applicants’ attorneys to the respondents did not constitute service for initiating proceedings in terms of rule 4(1)(a) of the uniform rules of court, Neukircher said. She gave the health department 30 days to file its responding affidavit to the issues raised by Solidarity and its coapplicants, which include several individuals, the Alliance of South African Independent Practitioners Associations, and the SA Private Practitioners Forum (SAPPF).

The health department’s director for legal services, Kgorohlo Moabelo, said that if the high court again upheld Solidarity’s argument that the certificate of need provisions were unconstitutional, the judgment would require confirmation by the Constitutional Court.

Deputy director-general for NHI Nicholas Crisp said the certificate of need is common practice around the world. “In SA it applies to pharmacies already. The current mandates for issuing licenses are spurious and were contained in Section 44 of the Health Act of 1977 and Regulation 158. These clauses of the National Health Act replace and expand on the provision of that clause. It is nothing new.”

SAPPF CEO Simon Strachan said it was disappointing that last year’s ruling had been rescinded on procedural grounds. The certificate of need provisions in the National Health Act applied to facilities ranging from JSE-listed hospital groups to single GP practices, and would affect both businesses and individuals, he said. A certificate of need would be valid for only five years, which meant a healthcare professional would live with constant uncertainty about whether or not they could pursue their career in a place of their choice, he said.

Solidarity spokesperson Perriu Marx said the organisation’s position remained unchanged, and it had no further argument to make to the court.

The legislative framework for NHI is set out in the NHI Bill, which proposes establishing a central NHI Fund that will purchase services for the entire population from accredited providers. The bill was approved by the National Assembly last week, and is being considered by the National Council of Province’s select committee on health and social services.