The Department of Health’s plans to control where doctors work have been dealt a blow by the Gauteng High Court (Pretoria) which has declared unconstitutional and invalid the National Health Act’s provisions for issuing health establishments with a “certificate of need”.
Health Department spokesperson Foster Mohale said the ruling has “serious implications” for the implementation of National Health Insurance (NHI), and the department would seek a rescission of the judgment and challenge the matter in the Constitutional Court.
Business Day reports that the department’s controversial certificate of need (CoN) scheme was promoted as a means to boost health services in rural and under-serviced urban areas, but has been opposed by doctors, who say they should be able to work where they choose.
The High Court has agreed with them, upholding an application brought by trade union Solidarity, the SA Private Practitioners Forum (SAPPF), the Alliance of SA Independent Practitioners Associations and four individual healthcare practitioners, to declare sections 36 to 40 of the National Health Act invalid.
The applicants named Health Minister Joe Phaahla, director-general Sandile Buthelezi and President Cyril Ramaphosa as respondents, neither of whom opposed the matter.
In a scathing ruling, Acting Judge Thembi Bokako said the respondents had “unaccountably refused to participate in the matter … despite without a shadow of a doubt being aware of the proceedings”.
Bokako said the CoN scheme gave no regard to the wishes and needs of healthcare professionals and allowed the director-general to view them as “inanimate pawns” in pursuit of the state’s objectives.
Certificates of need were to be valid for 20 years.
He added: “In the end, the government must motivate young, intelligent people to enter the healthcare industry. They must want to be employed in an industry that assists the government in realising section 27 (1) of the Constitution. But when government imposes a scheme that has all the problems identified in the founding affidavit, it disincentivises new entry into the profession. It operates directly against the attainment of greater healthcare service for the community. Government should take note that doctors are leaving the country – the government cannot promote the right to healthcare by making it undesirable for existing practitioners and new practitioners to render healthcare services.”
He said it was a strong sign that the law was unjustifiable when the state was unwilling to defend its legislation and “unaccountably refused to participate in these proceedings”, despite repeated attempts by the applicants to get the health department, State Attorney’s office and the President’s office to respond, reports MedBrief Africa.
While the state had a constitutional duty to take “reasonable measures” to further the progressive realisation of the right of everyone to healthcare services, “I’m not convinced that the disputed sections of the Act are coherent and consistent with the primary objectives of the Health Care Act,” added the judge.
The CoN scheme unjustifiably infringed constitutional rights, he said, awarding costs against the three government respondents.
According to Solidarity, the state’s goal “clearly was to pave the way for the NHI and to compensate for the bankruptcy of the state coffers”.
“The government wants to change to a system in which healthcare is nationalised and practitioners become servants of the state so that the provision of all healthcare can be centrally controlled by the state. This victory thwarts those disastrous plans,” said Solidarity CEO Dr Dirk Hermann in a statement.
Solidarity said this would have amounted to the expropriation, as it were, of health practitioners’ businesses and their property at the expense of both the practitioners and those who are currently using their services.
“In essence, these sections would have empowered the government to capture medical practices almost entirely and to manage them at will – rather than them being run at the discretion of the doctors. We cannot simply hope that the government would always apply its wide discretions responsibly. A government should not have such powers at all,” Hermann added.
Angelique Coetzee, a board member of Solidarity’s Doctors Network Advisory Board, and immediate past chairperson of the SA Medical Association, (SAMA), said the ruling is significant. “The certificate of need has been like a sword hanging over our heads. A lot of doctors left SA because of it.”
She said the “blind pursuance of shoddily drafted legislation showed a huge lack of insight and proved that government did not listen to doctors”.
“It’s stupidity. We have the type of government that thinks it’s a one-party state and that they know what’s best for every one of us – that they can do what they what they want. Well, that’s not going to happen.”
She said government should rather incentivise doctors to work in rural areas.
“This, (CoN), is something that could never work, they didn’t look at the consequences. We’ve seen how bad public sector hospitals are in Gauteng. Only dedicated doctors who will serve regardless of the circumstances will work in even worse rural facilities. Legislation won’t help – only decent infrastructure, good administration and other incentives will,” she added.
SAPPF CEO Simon Strachan said the CoN need was an inappropriate tool for increasing the number of doctors working in under-serviced and rural areas. The department should rather entice people to work in these areas, he said.
“We are very happy with the ruling, but we should be aware that nothing is finalised because it still needs to go to the Constitutional Court to be ratified,” he cautioned.
“The fact that the DoH has not opposed the application is interesting. The judgment is fairly critical about the DoH, the president and DG of Health’s conduct around not responding at all, not even telling the court that they were not going to oppose it.”
Chairperson of the Rural Doctors or South Africa (Rudasa) Dr Lungile Hobe told MedBrief Africa that forcing doctors to work in rural areas instead of incentivising them would “not necessarily lead to improved quality of healthcare, as some doctors need to travel long distances or offer locums to limit travelling”.
She said GPs in her far north-eastern KwaZulu-Natal deep rural area of Umkanyakhude (near the Mozambican border), hardly ever visited their rural practices because they ran more profitable dual practices in the closest town.
“They often get students to do locums. So, we can advocate for more rural practices, but without regulations, we’re still exposing the rural communities to poor quality care, even with a GP practice in their area.”
The contentious CoN provisions were drafted in 2003 by then National Department of Health Deputy Director-General of Service Delivery Dr Kamy Chetty. They were put on hold when protest erupted and the SAMA threatened to take the government to the Constitutional Court to counter the threat to the movement and trade of its 17,000 doctor-members.
A full 11 years later, (2014), the legislation was suddenly enacted as a virtual “fait accompli”, catching private healthcare professional bodies, hospital associations and NGOs by complete surprise. The battle has raged ever since. This week’s ruling seems to have finally drawn a line under it.
Business Day PressReader article – High court ruling ‘has serious fallout for NHI’ (Open access)
Solidarity statement (Open access)
MedBrief Africa – Death of a hugely shoddy law – Certificate of Need (Open access)
See more from MedicalBrief archives:
Solidarity: Judgment reserved in application to have NHI ‘certificate of need’ declared invalid
Court application to challenge constitutionality of ‘certificate of need’
Solidarity warns over proposed ‘certificate of need’ for healthcare practitioners