NHI bid to control where doctors work is defeated

• Pretoria judge rejects defence of unconstitutional and irrational government plan

The high court in Pretoria has dismissed the health minister’s defence of the government’s controversial plans for controlling where doctors work, affirming a previous ruling that the National Health Act’s certificate of need provisions are unconstitutional and should be struck down.

The development is significant because the certificate of need is an important aspect of the government’s plans for National Health Insurance (NHI). The health department wants to use these measures to manage where private healthcare facilities and healthcare professionals provide their services, a proposal that has been fiercely opposed by the private healthcare sector.

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 turn of events, the matter was heard unopposed. Only the applicants presented arguments. The health minister subsequently applied successfully for the ruling to be rescinded on the grounds that he was not properly informed about the matter, and was given an opportunity to have his say in court in early June.

On Wednesday, judge Anthony Millar dismissed the minister’s argument that it was premature to hear the matter because regulations to bring the certificate of need into effect had not been promulgated.

The disputed sections of the act say healthcare professionals and healthcare facilities must apply to the health directorgeneral for a certificate of need, and criminalise the provision of health services or the operation of a health facility in a particular area without such authorisation. They will have two years to apply for a certificate of need after the scheme is brought into effect, and certificates will be valid for up to 20 years.

The judge 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 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.

BLUNT INSTRUMENT

Certification was a “blunt instrument” that would be used by the health department to reduce the number of private healthcare establishments and professionals who could operate in a specific area in the hope that having been deprived of their property and ability to earn a living they would relocate to an area that met approval, he said.

“The sword of Damocles hangs over every private healthcare establishment and private healthcare provider in perpetuity.” The certificate of need scheme would result in the arbitrary deprivation of property, impair the right to freely practice a trade, occupation or profession, and deter investments in private healthcare, he said.

It was procedurally unfair as it did not provide an adequate appeal mechanism and violated section 25(2) of the constitution, because it did not provide a mechanism to provide affected parties with fair compensation for their resources.

Solidarity CEO Dirk Hermann said the ruling dealt a blow to NHI, the government’s plan for universal health coverage. “The NHI in its current format cannot be implemented as the essence of the NHI is central planning — and this has now been found unconstitutional,” he said. Solidarity launched a legal challenge against the National Health Insurance Act, which was signed into law by President Cyril Ramaphosa two months ago, but has yet to be brought into effect.

The health department had not responded to Business Day’s request for comment at the time of publication. Its deputy director-general for NHI, Nicholas Crisp, told Business Day previously that the certificate of need was common practice around the world and was already in play for pharmacies in SA.