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Proclamation led to 'untenable and unintended’ situation

The South African Constitutional Court yesterday handed government’ legal advisers a stinging rebuke, describing President Jacob Zuma’s signing of a proclamation that forces healthcare workers to obtain government permission to work in their preferred location as ‘irrational and invalid’. The Court nullified sections 36-40 of the National Health Care Act but the legislation remains on the table.

Health Department Director-General Precious Matsoso said the principle of the so-called certificate of need, was ‘not in question’, but some of the concerns raised by the healthcare industry needed to be taken into account. Stakeholders had complained that aspects of the act were ambiguous and its penalties too harsh, she said. The act makes noncompliance a criminal offence, but Matsoso said a fine might be a more appropriate sanction.

The judgment handed down yesterday by the Constitutional Court, followed an application by the Presidency that it set aside a proclamation bringing into effect sections 36 to 40 of the act. These sections require all health establishments – from general practitioners’ offices to private hospitals – to obtain a certificate of need. President Jacob Zuma had signed the proclamation last year, despite no enabling regulations being in place.

The wording of the act meant all healthcare establishments were immediately criminalised, as none had the requisite certificate of need. Worse still, there was no means to obtain them.

Lawyers for Zuma and the Health Department told the court the President had ‘acted in good faith when he determined a date for the statutory provisions to take effect, but was led astray by his advisers’ mistaken counsel’. The court found that the issuing of the proclamation had led to an ‘untenable and unintended situation which could inhibit or discourage health care practitioners from providing essential services’ for fear of criminal sanction.

The M&G notes that this is a temporary reprieve for the sector. Health Minister Aaron Motsoaledi believes there is a need to address health inequalities between rural and urban areas.

The SA Dental Association and the Hospital Association of SA, who supported the President’s application, have mounted a campaign alongside groups like the South African Medical Association and the South African Private Practitioners Forum (SAPPF) to have the new requirements reviewed, arguing that it’s a blunt and coercive instrument with grave and unintended consequences. SAPPF chief executive Dr Chris Archer said that the Health Department’s central problem is how to deal with the mismatch between the distribution of disease and health services. He said the solution was not regulated distribution of medical practitioners, suggesting that ‘innovative public/ private partnerships that do not depend on the development of fixed capital intensive infrastructure’ would be a more practical solution.

Yesterday, the Court ruled that the proclamation had been signed ‘prematurely’. It found that the president’s decision to sign was ‘irrational and invalid’ because no regulations had been drafted to accompany the law. Consequently, the law led to what it called an ‘untenable and unintended situation’ that turned healthcare workers into criminals for working without a certificate that was not available to them.

South African Medical Association spokesman Mzukisi Grootboom said the acknowledgement there were flaws in the act was encouraging. ‘We’d ask them to relook at the whole philosophy of the certificate of need. We are sympathetic to the lack of access in outlying areas, but we all need to decide how to address this,’ he said.

South African Dental Association CEO Maretha Smit said: ‘We’d like to find alternative mechanisms so we don’t move people like pawns on a chessboard. You could have incentives like tax breaks, rural allowances, improved working conditions and lower barriers to … foreign healthcare professionals.’

[link url="http://mg.co.za/article/2015-01-27-doctors-operating-legally-after-concourt-ruling-invalidates-presidents-proclamation"] Full Mail&Guardian report[/link]
[link url="http://times-e-editions.newspaperdirect.com/epaper/viewer.aspx"] Full The Times report (subscription needed)[/link]
[link url="http://www.news24.com/SouthAfrica/News/DA-welcomes-health-proclamation-ruling-20150127"] Full News24 report[/link]
[link url="http://www.bdlive.co.za/national/health/2015/01/28/state-rethink-on-posting-of-doctors?PageSpeed=noscript"] Full Business Day report[/link]
[link url="http://www.saflii.org/za/cases/ZACC/2015/2.html"] Full Constitutional Court judgment[/link]

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