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Court application to challenge constitutionality of ‘certificate of need’

The controversial “certificate of need”, in terms of which healthcare practitioners will have to apply to the State for approval regarding where they may practise, faces a constitutional challenge by the Solidarity trade union, writes MedicalBrief.

Solidarity issued a court application against the Director-General of Health, the health minister and the president last Thursday (9 December) to have sections 36 to 40 of the National Health Act declared unconstitutional.

According to Solidarity, the provisions of these sections, as well as any resultant regulations, are unconstitutional and unlawfully infringe upon the rights of healthcare practitioners.

“Although the provisions contained in sections 36 to 40 of the National Health Act have not yet been implemented, proposed regulations have already been published that precede the implementation of the sections,” said Henru Krüger, head of the Health Guild at Solidarity. “The proposed regulations are clearly unconstitutional on various grounds as set out and discussed in our application. Instead of addressing the need for healthcare and broadening access to healthcare, the scheme is merely a license to be issued to practitioners if they meet the Director-Generalʼs set requirements. This will be to the detriment of all South African citizens.”

He said Solidarity believed the provisions to be “irrational and without any logical link to the alleged objectives”.

“The proposed licensing requirements seriously infringe upon the rights of healthcare professionals to practice their profession according to their own discretion. Our healthcare staff are also citizens, and they also have rights, like any other citizen who practises a profession of choice.”

Solidarity is applying for sections 36 to 40 to be removed from the Act because if these articles should come into effect, they may also amount to, among other things, the expropriation of health personnelʼs property, at the expense of both the practitioners and those who currently use their services.

“It is inconceivable that the government, which currently does not have the funds to place and train about 1 500 graduate doctors, is now turning to the facilities and staff of the private sector to expropriate them,” Krüger said.

Solidarityʼs application has been supported by a number of practitioners in various fields of the health profession, as well as voluntary associations active in the profession and representative of all specialties, as co-applicants to the main application.

“The objective of the state is clearly to pave the way for the National Health Insurance (NHI) and to compensate for the bankruptcy of the state coffers. The government wants to move to a system in which healthcare practitioners become servants of the state and in which the state centrally controls the delivery of healthcare. We cannot allow this. We are ready to fight it in court,” Krüger said.


Solidarity statement – Solidarity heading for court regarding “certificate of need” (Open access)


See more from MedicalBrief archives:


Solidarity warns over proposed ‘certificate of need’ for healthcare practitioners


Solidarity launches PAIA application regarding NHI remarks by Dr Nicholas Crisp


Treasury says NHI implementation so slow that no budget is needed anytime soon


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