The scathing judgment by the High Court declaring sections of the National Health Act unconstitutional, was not related to the NHI and attempts to link the two were mischievous.
MedicalBrief reports that this was the reaction from Health Minister Aaron Motsoaledi following Judge Anthony Millar's ruling last week, which, among other things, declared the certificate of need plan as 'irrational'. The ruling was hailed by trade union Solidarity, which was one of the applicants in the case, as a major breakthrough in its fight against the NHI.
But Motsoaledi said attempts to link the ruling with the NHI was part of a “deliberate campaign to discredit the NHI”.
The relevant sections of the National Health Act dealt with by the court deal with plans to regulate where doctors can work and hospitals can operate, and requires a certificate to be applied for and approved by the Department of Health director-general.
Without this authorisation, the department will criminalise the provision of health services or the operation of that health facility.
They will have two years to apply for the certificate after the scheme is brought into effect, and certificates will be valid for up to 20 years.
Motsoaledi said Millar’s judgment had nothing to do with the NHI scheme, and that the National Health Act that contained the requirement for a certificate of need predated the NHI Act by 20 years. He said efforts to link the two were mischief.
The National Health Act came into operation about 20 years ago and regulates how health services are supplied, but the certificate of need provisions that allow the government to determine where doctors can work has not been brought into operation yet.
The Minister equated litigation about health rights to a war between the rich and the poor and said it was similar to litigation about the expropriation of land without compensation.
“We have been inundated with calls from concerned people who were made to believe that the NHI has been declared unconstitutional by a court of law…people who have even started celebrating their perceived demise of NHI,” he told Daily Maverick.
He said the “propaganda” describing the judgment as a blow to the NHI had been “hugely successful”, but he did not give any indication of plans to appeal against the ruling, saying they were still considering their options.
BusinessLIVE reports that Millar was scathing in his assessment of the plan, which he called 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 that 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 added.
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, the judge said.
“The sword of Damocles hangs over every private healthcare establishment and private healthcare provider in perpetuity.”
But Motsoaledi said he struggled to understand “how a right to health by all people interferes with other people’s rights to own property”.
“While we execute our mandate of provision of healthcare as a human right, the court seems to have placed economic property rights at the expense of the right to health. It is very unfortunate that while we live within the borders of the same country we seem to be existing in two different worlds – one where it is believed the right to health must reign supreme, and the other world of economic property rights for the privileged few, where the welfare of human beings counts for nothing.
“Our intention is to regulate health facilities and provision of healthcare … this is our mandate, but the court seems to have concentrated on economic property rights.
“The judgment is about the regulation of health establishments through licensing, both public and private, something which is common around the world.
“For example, one cannot wake up one day and open a filling station or mall without needs assessments – the same with health establishments.”
For its part, as a department, he added, “we will at all times take the side of the poor”.
All eyes will now turn to the Constitutional Court, which will consider the judgment before it has any effect.
Implications for NHI
Doctors and those in the healthcare industry to whom News24 spoke had different views on whether the judgment would have implications for the NHI.
Health and social security systems specialist Professor Alex van den Heever said he believed that while the judgment did not have a direct impact on the NHI Act, it would suffer the same fate as the National Health Act if challenged in court.
“The relationship between this judgment and the NHI Act is what happens when you apply the same analysis. The kinds of challenges that are likely to occur will probably mirror what happened in this court case that dealt with bad legislation.”
He said there were similar legal issues involved in both Acts.
“The judgment itself clarifies what many of the challenges will be for the NHI Act.”
Fazlin Swanepoel, the head of health at Alexforbes, said the judgment had a significant impact on NHI plans.
“The implications are that the government cannot dictate where private health practitioners can work, a key component of the NHI’s central planning strategy.
"This could well be seen as potentially undermining the principle of central control on which the NHI will be reliant," she added.
Solidarity said the judgment was a major breakthrough in its fight against the NHI.
“This 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,” Solidarity CEO Dirk Hermann added.
“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.”
However, Solidarity still has its sights set on challenging the NHI Act in court, which deals more specifically with the centralisation of funds for healthcare.
Willem Gerber, a private doctor in Qonce, the Eastern Cape, said he was against the NHI Bill and was happy with the judgment. “It was ridiculous to start with, as it was intended to take away private doctors’ constitutional rights and basically enslave us to the state.
“It just shows you how our taxpayers’ money is wasted in court cases which the state well knows are indefensible. The sooner the NHI is wiped off the table the better.”
Echoing similar comments, Johannesburg doctor Grant Lindsay, who recently moved into private practice after years in the public sector, said Millar’s judgment was a step in the right direction.
“This is just the first of many legal challenges that NHI faces. Obviously this is important as the first legal blow against the NHI.”
SA Health Professionals Collaboration (SAHPC) spokesperson Caroline Corbett said the organisation welcomed the judgment “as it echoes our stated concerns regarding the unconstitutionality of aspects of the Act”.
“We continue to urge the government and its newly formed representation to urgently focus on tangible and feasible health reform.”
ActionSA welcomed the ruling, saying the sections were unjust. “The attempt to overburden healthcare practitioners with a cumbersome bureaucracy centred in the already constrained Department of Health was rightly ruled invalid by Judge Miller,” said ActionSA MP Dr Kgosi Letlape.
No impact on NHI
But not everyone agreed the judgment would have implications for the NHI, with a physician in the department of family medicine at Wits University, Professor Shabir Moosa, saying: “The judgment relates to the National Health Act of 2003 in which the certificate of need has been included. This has been in dispute for many years and the matter has to go to the Constitutional Court from here.”
He did not see the judgment as material to the NHI Act, which enabled the government to purchase healthcare services from the private sector.
Director of the Rural Health Advocacy Programme Russell Rensburg also did not believe the ruling would affect the NHI or its implementation.
He said Millar did not invalidate the National Health Act in its entirety, which provides a framework for a structured uniform health system, and that the judgment looked at the rationality of the provisions, which have been declared invalid, and not the central planning.
Millar did not find those sections infringed on the rights of healthcare practitioners, he added, but rather focused on the rationality of the powers that the director-general had in issuing the certificates.
“I don’t see how the central planning bit is struck off. The judgment doesn’t invalidate the entire Act that is about central health planning.”
He said the judgment looked at the make-up of the certificates and did not make findings on the limitations of rights, such as the right to trade, which was part of the case put forward by Solidarity and the other applicants.
Despite this, Rensburg welcomed the judgment because he said how the certificate of need was articulated in the Act was problematic and difficult to implement.
He welcomed the possibility of these sections being amended.
Motsoaledi, however, is set for the long haul and unlikely to change his stance or arguments, reports BusinessLIVE.
“There is a legitimate government purpose served by the introduction of this certificate of need, contrary to opinions,” he said.
“Certificate of need is meant to achieve two important objectives – to regulate the quality and standard of healthcare being provided in a particular facility and to determine whether an intention to put up a facility, extend the facility, increase the number of beds or put in some particular equipment is appropriate for that area.
“It is because of this legitimate government purpose that many other countries also have a certificate of need.” He cited the examples of Australia, Canada, India, Malaysia, New Zealand, Nigeria, Philippines, Singapore, Sri Lanka, Tanzania, Uganda and the UK among other countries.
He said there were similar sections to those being declared unconstitutional in the Pharmacy Act, but these had never been challenged “or worried about”.
“Where are these property rights when it comes to the location of pharmacies? It is well known that one cannot just place a pharmacy anywhere in the country, because there are rules that regulate that. Currently, after obtaining a practice number, a doctor can practise anywhere (whether in their office, bedroom or boot of a car, or even hire premises next door to a tavern). Nobody can do anything about it.”
He said that even the Health Professions Council of South Africa could not provide a comprehensive list of where healthcare workers were practising if they were not in public healthcare facilities.
“Likewise, the Board of Healthcare Funders, which provides private health practitioners with a practice number empowering them to claim money from medical aids, cannot, with certainty, state where practitioners are practising or what type of facility they are practising in.”
He insisted that the certificate of need provisions had nothing to do with the NHI.
“It is purely mischief to assert a connection, and is a part of the deliberate campaign to discredit the NHI. There is even a claim that the certificate of need is a cornerstone or a central pillar of NHI, presumably without which NHI can’t fly.
“This war going on in the courts, media and all public institutions about provision of healthcare, is a proxy war between the rich and the poor, and not between the rich and the state. That is why the judgment emphasises property rights, exactly the same argument which is presented in courts when the poor black majority want access to land.”
BusinessLIVE article – NHI bid to control where doctors work is defeated (Restricted access)
BusinessLIVE article – Motsoaledi says court judgment has nothing to do with NHI (Restricted access)
See more from MedicalBrief archives:
Hard-hitting court ruling against ‘certificate of need’ plan
State’s case against ‘certificate of need’ ruling delayed
Certificate of Need ‘legal mess’ threatens NHI