Monday, 15 April, 2024
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Landmark decision: High Court orders ‘reprehensible’ KZN Health to allow private training of nurses

The Pietermaritzburg High Court this week directed KwaZulu-Natal Health to authorise within 10 days a Hospital Association of SA (HASA) application for the training accreditation of 230 nurses.

Judge Rishi Seegobin rebuked KZN Health for “acting unreasonably” and “reprehensible conduct” and the judgment opens the door to the resumption of private training nursing training, stifled for three years by government and SA Nursing Council resistance, private health sector sources told MedicalBrief.

A spokesperson for HASA told MedicalBrief that while they had no comment on the judgment, they wanted to continue to flag the “far more important matter of the general shortage of medical skills, in particular specialist medical skills, in the country.

“These obviously affect health delivery and outcomes. We are convinced we can only meet the huge challenge of getting adequate numbers of doctors and nurses to patient’s bedsides if all stakeholders collaborate, which is why HASA rededicates itself to work with the national department and provincial departments of health and other stakeholders to collectively find short-term and long-term solutions.”

Tania Broughton, reporting for TimesLIVE, writes that Seegobin added that KZN Health had also engaged in a “pointless finger-pointing exercise” in its refusal.

HASA– an association of approximately 80% of South Africa’s more than 200 private hospital, including JSE-listed Mediclinic, Life Healthcare and Netcare , as well as the voluntary association, the National Hospital Network – had approached the court in October 2021 with an urgent application for an order reviewing a refusal a refusal by the KZN Health head of department, to provide the letters of support for it to make an application to the SA Nursing Council (SANC) for accreditation to train 230 nurses at its own institutions.

KZN Health had said there was a three-year moratorium on nursing training because of a “surfeit” of nurses in the province who needed jobs and who should be employed in private hospitals. HASA said this was not true. The COVID-19 pandemic had put  strain on the profession, many nurses had died, and research showed almost half of SAʼs nurses would retire in 15 years’ time.

The HOD and the MEC opposed the urgent application, which was finally heard in February this year.

Two issues had to be decided by Seegobin, reports TimesLIVE. One was the technical defence that the application, under the Promotion to Access of Justice Act (PAJA), was out of time and should be dismissed. The other was whether HASA was entitled to the review.

Seegobin, in his ruling, explained that in terms of regulations, the relevant provincial HOD had to issue “letters of support” to any application to the nursing council for accreditation to train nurses. This was to prevent “congestion” of trainees in public health establishments and to ensure the public healthcare system was not burdened with an oversupply.

Seegobin said HASAʼs lawyers had pointed out that the department had still not provided evidence of the so-called surfeit of nurses, and that HASA had been unable to train any new nurses since 2019, which was “chronically compromising access to healthcare”.

“It is an untenable situation with reference to your constitutional obligations to facilitate access to healthcare services and the prevailing COVID-19 pandemic,” the HASA letter stated.

Seegobin said: “Needless to say there was no response … it was left with no option but to institute court action.”

The HOD claimed that in October last year a decision had been taken to allocate 100 training placements to Hasa. The judge said Hasa had described this as a “knee jerk reaction to the litigation”, an assertion with which he agreed.

Seegobin said Hasa had assured that the training would be done at its own cost and the graduates would be placed at its own institutions, so there would be no strain on government resources.

“It is deeply concerning that instead of owning up to its mistakes and taking responsibility for its failure to address the critical issues raised by HASA over such a long period of time, it chooses to sustain this rather reprehensible conduct by pegging its case on technical defences that have no merit whatsoever.

“HASA has conducted itself most appropriately throughout, regrettably the same cannot be said of the HOD and the department.

“It is clear the department is behaving unreasonably and limiting the publicʼs right to access to healthcare services. HASA has demonstrated, quite adequately in my view, that there is a need for nurses in private healthcare institutions in KZN. Such an assessment is based solely on logic and demographics and requires no scientific or other expertise.”

He granted condonation “in the interests of justice” to HASA for overshooting the 180-day deadline imposed by PAJA, set aside the HODʼs refusal to issue the letters of support, and ordered that they be issued within 10 days.

Background

As previously reported by MedicalBrief, private hospitals have for years been appealing to SANC and the various government departments and agencies involved  to allow them to train more nurses, warning that the decision to restrict numbers threatens the pipeline of future nurses. In 2019, HASA proposed at the Presidential Jobs Summit that the sector train 50,000 nurses over the next eight years to help tackle South Africa’s critical shortage of healthcare professionals.

While the lion’s share of South Africa’s nurses are trained at public nursing colleges and universities, private hospitals had historically played a significant role too. Nursing training institutions were required to get approval from multiple bodies – the Council for Higher Education, SANC, and the SA Qualifications Authority, as well as the Department of Higher Education & Training and provincial health departments.

Hospital Association v HoD KZN

TimesLIVE article – Give private nurses a lifeline, judge orders KZN health department (Restricted access)

 

See more from MedicalBrief archives:

 

Retirement boom and training drought — SA’s looming nursing crisis

 

Jobs summit to consider Netcare proposal for 50,000 new nurses

 

Gauteng Health admits to 'critical' shortage of nurses

 

New Critical Skills List records no shortage of medical skills in South Africa

 

Global nursing crisis deepens as pandemic and staff shortages wreak havoc

 

 

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