Ruling a major setback for NHI
A requirement described as a cornerstone of the proposed National Health Insurance (NHI) – legislation that would require doctors and health practitioners to obtain a ‘certificate of need’ before being allowed to practise in a particular area – has been declared unconstitutional by the Gauteng High Court (Pretoria).
Solidarity’s chief executive, Dr Dirk Hermann, is quoted by the Daily Maverick as saying: ‘This judgment is a major blow to the total NHI idea, as the principle of central management is a core pillar of the NHI Act itself. A more extensive consequence of this ruling with regard to the certificate of need is that parts of the NHI Act are now probably also illegal in principle. 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.’
While this case targeted relevant sections of the National Health Act, he said Solidarity would also fight the National Health Insurance Act in court and specifically provisions that allow for the centralisation of funds for healthcare.
In dismissing the Health Minister’s defence of the government’s plans for controlling where doctors work, Judge Anthony Millar affirmed a previous ruling that the National Health Act’s certificate of need provisions are unconstitutional and should be struck down.
Business Day suggests the development is significant because the certificate of need is an important aspect of the government’s plans for 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 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 and only the applicants presented their arguments.
The Health Minister subsequently successfully applied to have the ruling rescinded on the grounds that he had not been properly informed of the matter and was given an opportunity to have his say in court in early June.
Yesterday, 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 DG 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.
Business Day says 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.
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, Millar 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 practise a trade, occupation or profession, and deter investments in private healthcare, he added, according to Business Day.
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.
The Health Department had not responded to Business Day’s request for comment at the time of publication, but its Deputy DG for NHI, Nicholas Crisp, previously told the paper the certificate of need was common practise around the world and was already in play for pharmacies in SA.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
