The Department of Health’s ambitions for controlling where doctors work have been dealt a huge blow by the Gauteng High Court (Pretoria), after it declared the National Health Act’s provisions for issuing health establishments with a ‘certificate of need’ unconstitutional and invalid.

A Business Day report says the ruling has ‘serious implications’ for the implementation of National Health Insurance (NHI), and the department will seek a rescission of the judgment and challenge the matter in the Constitutional Court, according to spokesperson Foster Mohale.

The department flighted the 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, the Alliance of SA Independent Practitioners Associations and four individual healthcare 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, DG Sandile Buthelezi and President Cyril Ramaphosa as respondents, none of whom opposed the matter.

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’.

The Business Day report says 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 healthcare services, warning that it would be unconstitutional to erode existing rights.

‘That constitutional requirement cannot be met by depriving those who enjoy access to healthcare services of their existing rights ... that is not an improvement of healthcare services; it is only the shuffling of cards already there. That will in all likelihood result in the lowering of healthcare quality in an area,’ said the judge.

This section may have implications for the NHI Bill, 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 DG 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.

Full Business Day report