The Constitutional Court has provided clarity on a long-running dispute on Certificates of Need for health professionals, dealing a blow to the national Department of Health and casting a shadow over the implementation of the National Health Insurance (NHI), writes MedicalBrief.
The apex court this week declared Sections 36 to 40 of the National Health Act , which deal with the Certificate of Need, a licensing system for healthcare providers that would have allowed the government to determine where doctors and nurses could work – invalid and invalid and unconstitutional. But the department said it is now “exploring alternative and international licensing models to improve healthcare access”, reports Daily Maverick.
The sections, which also gave the department the power to determine where private hospitals could install new wards and equipment, were challenged by trade union Solidarity and six other parties, including organisations representing doctors and private hospitals.
The ruling was welcomed by NHI critics but has been downplayed by the Health Department.
Spokesperson Foster Mohale said the department was looking at alternative schemes in Canada and Denmark, where structured licences were issued to health facilities and health practitioners had to apply to work at these hospitals – but that the department wanted to point out that no part of the NHI Act had been declared unconstitutional.
Under the controversial section, a certificate was needed to establish, construct, modify, acquire or continue to operate a health establishment or agency in the country. This extended to acquiring health technology or providing prescribed health services.
Opponents characterised the certificate as one of the pillars of state control over healthcare, and a core component of the NHI scheme, reports Business Tech.
Operating without a certificate would have constituted an offence, with violators at risk of a fine or five years’ imprisonment.
The government said the intended purpose was “to equalise the availability of medical practitioners, including specialists, between the private and the public sector and also between urban and rural areas”.
The Constitutional Court ruling follows the 2024 one by the High Court that the certificate was not rational, and failed to account for the constitutional rights of owners of private health establishments, service providers and workers.
The court also found the scheme to be procedurally irrational and lacking safeguards, violating several constitutional rights.
In the matter brought by Solidarity, the Hospital Association of South Africa (HASA) and the Alliance of South African Independent Practitioners’ Associations, the litigants sought confirmation from the apex court, which has now confirmed the findings.
“The High Court’s declaration that the impugned provisions were invalid was confirmed, and the cross-appeal was dismissed,” it said.
“The certificate of need scheme is not rationally connected to the objective of ensuring transformation and a more equitable distribution of health services.”
It added that the powers of the Minister and the Director-General of Health are not sufficiently constrained when issuing certificates of need and dealing with all other aspects of the scheme.
“The certificate of need scheme unjustifiably limits the right to choose one’s profession, occupation or trade freely.”
While its own lawyers insisted that the provision to introduce controls over where medical practitioners and nurses could work was crucial for the future implementation of the NHI, despite the ruling, the government has maintained a firm stance on the future of the NHI.
In insisting that no part of the NHI Act had been declared unconstitutional, Mohale argued that legal provisions for the certificate of need scheme were never brought into operation.
“The sections in question were passed by Parliament 23 years ago and have never been brought into effect. Thus, there is no direct impact of the judgment on the NHI. Some within the political and private health sector have rushed to mislead the public. No section of the NHI has been declared unconstitutional.
“The department will continue with all necessary health system-strengthening preparations for the NHI as the mechanism for South Africa to realise universal healthcare coverage,” he told Daily Maverick.
The Constitutional Court said that no purpose would be served by referring the section of the law back to Parliament for rectification – it had to be severed from the law.
The Constitutional Court is the final word on the issue, and no appeals can be brought against this ruling.
Toppled
Anton van der Bijl, deputy chief executive of Solidarity, said the ruling has torpedoed one of the central pillars of the NHI.
“The certificate of need was far more than merely an administrative instrument. It was an instrument of centralisation and state control,” he said.
Solidarity has consistently argued that quality healthcare cannot be expanded through coercion and bureaucratic control, and said that it would continue its broader legal battle against the NHI.
Doctors from the Universal Healthcare Access Coalition (UHAC) welcomed the judgment, saying it should be viewed as “a call for better health reform, not as a defence of the status quo”.
“The judgment does not reject health reform. It confirms that reform must be lawful, rational, evidence-based and institutionally workable. South Africa urgently needs universal access to quality healthcare.
“The deep inequalities between public and private healthcare… remain unacceptable. But these cannot be solved through broad, poorly defined and highly centralised powers without clear safeguards or a coherent implementation framework,” it said.
Destructive
Business Day reports that in her Constitutional Court judgment, Justice Kate Savage wrote: “South Africa remains one of the most unequal countries in the world. Thirty years after the advent of democracy, the progressive realisation of the right to access to health services remains illusory for most of our people, deeply impacted by the destructive and discriminatory policies and practices of the past.
“This is so despite the constitutional duty on the state to take reasonable legislative and other measures to progressively realise this right. This case involves sections 36 to 40 of the National Health Act[2] (Act), legislation that the respondents posit as necessary to address the urgent need to achieve equitable health services for the majority of South Africans.”
The National Health Act was originally brought into operation on 2 May 2005.
Savage pointed out that the first ruling on the matter, delivered 21 years ago, set aside the certificate of need provisions.
“Despite the Constitution’s commitment to social justice and the improvement of the quality of life for everyone, the provision of health services … remains deeply inequitable, with access differing starkly by geographic location and between the public and private sectors,” she said.
The court, however, ruled that no rational connection had been shown to exist between the certificate of need provisions and the expressed government purpose of enhancing access to health services, or creating uniformity in respect of the provision of such services.
Thus, in a unanimous judgment, the apex court upheld the 2024 Gauteng High Court (Pretoria) finding that sections 36 to 40 of the National Health Act are irrational.
While the Health Department’s ambition to progressively widen access to healthcare with a more equitable geographic distribution of services is legitimate, the Act’s certificate of need provisions are not a rational means to achieve it, it said.
In the absence of regulations defining the scope of the scheme, it was unclear which health establishments, professionals, equipment or services would be affected by the certificate of need, effectively giving the Minister of Health unfettered power, wrote Savage.
“Recklessly pursued, without appropriate regard to the impact of such regulation, the potential clearly exists to effect lasting damage to the provision of all health services across South Africa,” she said.
The court also found the certificate of need provisions unjustifiably limit the right to choose a trade, occupation or profession. The rights and interests of healthcare professionals and health establishments are not included in the factors set out in section 36 that are to be weighed up by the department in determining whether to grant or refuse a certificate of need, said the judgment.
The South African Private Practitioners Forum, representing doctors, welcomed the ruling.
“We are ecstatic,” said SAPPF CEO Simon Strachan. The judgment is important because many of the constitutional arguments about the rights of doctors are similar to those set out in challenges to the Act, he said.
HASA said it welcomed the legal clarity brought to a long-standing issue. The NHI Act was signed into law in 2004, and the certificate of need provisions first challenged more than a decade ago by the South African Dental Association (SADA).
SADA attacked the certificate of need on procedural grounds, successfully arguing that a proclamation bringing sections 36 to 40 into force had been invalid because no enabling regulations were in place at the time.
The DA’s health spokesperson, Michele Clark, said the ruling has important implications for the implementation of the NHI Act.
“While the NHI Act does not explicitly mention certificates of need, the court case provides a fundamental precedent that goes against one of the key pillars of NHI, which is the centralisation of healthcare control and the restriction of practitioners’ ability to operate freely,” she said.
ActionSA MP Kgosi Letlape said the ruling is a significant victory against state overreach. “It sets an important constitutional precedent as further legal challenges against the NHI Act continue.
“This judgment reaffirms that quality healthcare cannot be achieved through coercion, bureaucracy and centralised state control. South Africa’s healthcare crisis is the result of government failure, poor infrastructure management and corruption, not a lack of willingness by healthcare professionals to serve communities.”
Business Tech article – Huge win for doctors and private healthcare in South Africa (Open access)
Solidariteit article – Solidarity triumphs as central pillar of NHI collapses (Open access)
See more from MedicalBrief archives:
Union takes fight against ‘certificate of need’ to top court
Certificate of need ruling not linked to NHI – Minister
Hard-hitting court ruling against ‘certificate of need’ plan
Ramaphosa seeks Constitutional Court intervention on NHI ruling
President seeks top court intervention over NHI Act ruling