The decision on whether certain sections of the National Health Insurance Act are unconstitutional now rests with the Constitutional Court following the Gauteng High Court’s postponement this week of government’s application to scrap an earlier judgment on the controversial certificate of need provisions, notes Medical Brief.
On Tuesday, the High Court postponed the Health Department’s application for a rescission of a judgment handed down earlier this year – scuttling its plans for deciding where doctors work – pending the outcome of the Constitutional Court’s decision on whether to ratify the ruling.
BusinessLIVE reports that in June, Acting Judge Thembi Bokakao upheld an application brought by trade union Solidarity and five other parties challenging the constitutionality of the Act’s “certificate of need” provisions, an integral part of the government’s plans for National Health Insurance (NHI). Her ruling, which found sections 36 to 40 of the Act were unconstitutional and invalid, requires confirmation by the Constitutional Court before it comes into effect.
Under NHI, the government intends to manage the distribution of health services by requiring healthcare professionals and facilities to obtain a certificate of need before opening a business or expand a practice. The most vocal opposition to the provision has come from doctors, but the provisions in the Act also have a direct bearing on the operation of private healthcare businesses like hospitals, pathologists and radiology practices, reports BusinessLIVE.
The government has consistently positioned the requirement as a tool for improving access to health services in rural and underserviced urban communities.
But it has faced stiff opposition from doctors who say they should be free to live and work where they choose.
The department, which did not oppose Solidarity’s original High Court application, launched another bid on 28 July to rescind Bokako’s judgment. It then launched a stay application on 27 September to delay the Constitutional Court’s confirmation of her finding of unconstitutionality, pending the outcome of its rescission application.
Its case for rescission rests heavily on its claim that it was unaware of Solidarity’s High Court application, thus was unable to present its side of the story. Solidarity, however, says its attorneys made numerous attempts to inform it of the matter, both by hand and via email.
It said it had sent emails to several people in the department and the office of the State Attorney at every step of the way, including Health director-general Sandile Buthelezi and State Attorney Isaac Chowe, and each time received “read” receipts, but no response.
The sheriff of the court had also attempted to serve the application at the department’s head office on two separate occasions, but each time was “inexplicably” told by the receptionist that no one in the legal department was available to collect the application, Solidarity said.
In his founding affidavit, Buthelezi said court documents recording the sheriff’s efforts to serve the application papers on the department showed only one attempt to do so. Emails were not an acceptable means of serving papers, in terms of the uniform rules of court, and neither he nor the Health Minister had received Solidarity’s application via email, he said.
The Constitutional Court had asked Solidarity and the department on 26 October to provide it with written arguments on whether the High Court had the authority to rescind its order of constitutional invalidity, and whether it was in the interests of justice to grant the department’s stay application. Both parties have made their submissions, but the Constitutional Court has yet to issue further instructions.
On Tuesday, Acting Judge Jaco van Heerden ruled that the rescission application be postponed while the Constitutional Court considered the matter, and awarded costs to Solidarity.
“We are optimistic about a positive outcome, which will be a huge victory for healthcare practitioners and healthcare in SA. It will also pave the way for future litigation to stop the NHI entirely,” said Solidarity’s deputy CEO for legal matters, Anton van Bijl.
“Without (the certificate of need), they cannot tell doctors where and how they should practice. The medical sector in SA does not need yet more bureaucracy … this type of legislation leads to ineffective care, a sicker country, and outrage among medical staff whose rights are being trampled on,” he said.
However, he added, they were disappointed by Thursday’s ruling by the Gauteng High Court, dismissing with costs their urgent application on 12 October seeking an interdict setting aside the department’s recent advertisements for NHI posts. The court said the interdict would not be heard as an urgent matter.
While the department welcomed the ruling, Solidarity said advertising the vacancies before the NHI Bill passed the parliamentary process was unlawful, that this “demonstrated the department’s willingness to violate democratic processes and disregard the concerns of people opposed to the NHI”.
“Solidarity and other interested parties have been trying to take part in formal processes and to be a voice for rationality and reasonableness amid the government’s ideological obsession, but this seems impossible,” said Connie Mulder, head of Solidarity’s Research Institute.
“… the government has its mind set on disregarding the concerns of the people affected by the NHI. As in the case of the State of Disaster, it looks as though the courts are again going to be the only way to get the government to make the rational decision.”
He said the court did not deal with the substantive merits of the issue. “The matter is self-evidently urgent. We are looking at possible further avenues and may proceed with further appeal of the judgment.”
Health Department spokesperson Foster Mohale said it wanted to fill 44 positions as part of the process to establish a fully functional NHI branch, pending the finalisation of the NHI Bill in Parliament.
“The union filed an urgent court application in the Gauteng High Court (Pretoria) … seeking to prevent the department from making appointments of competent technical specialists to the NHI branch to assist with the preparations for the functioning of the NHI Fund,” he told News24.
Meanwhile, the DA has threatened legal action if the government passes the “disastrous” NHI Bill, saying it is “completely out of touch with reality”.
DA shadow minister of health Michele Clarke said the country cannot afford to financially implement the Bill, and that opposition parties are yet to see an up-to-date costing model or feasibility study taking into account the damaging effects of COVID-19 on the country’s economy or the possible effects of the looming recession.
“Should the ANC use its majority to bulldoze the NHI Bill through the Health Committee and both Houses of Parliament, the DA has instructed its attorneys to deliver a letter of demand to President Cyril Ramaphosa to send the unconstitutional, reckless and impractical NHI Bill back to Parliament for reconsideration,” she said. “If the President refuses this request, the DA, along with other civil society organisations, will reserve their right to challenge the legality of the Bill in court.”
This decision was taken after deliberations in the Health Committee ended and the ANC did not accept any material changes to the Bill, despite overwhelming opposition from the majority of opposition parties, she added.
Polity reports that the DA says while it has championed universal healthcare, the NHI Bill, in its current form, will fall dismally short of achieving this objective.
“Instead, what we will see is the public healthcare infrastructure being even more underfunded and patients dying en masse from the lack of services available to them.”
The DA also predicts large-scale corruption, as the Bill will establish a fund that will pool the Health Department’s funding for the country under one entity without any guarantees that proper oversight and internal controls will be implemented.
“A fund of this size, without sufficient controls against looting and corruption, will see a State Capture that is even greater than the one under Jacob Zuma’s reign,” said Clarke.
The DA will provide the chairperson of the Health Committee with its written submissions on why the NHI will not work and request that the state law advisers provide a written legal opinion on the various constitutional and legal issues so that if it comes to that stage, civil society can fight the Bill in court.
BusinessLIVE article – Health department in new bid to control doctors’ careers (Restricted access)
Polity article – DA threatens legal action if NHI Bill is passed (Open access)
See more from MedicalBrief archives:
Solidarity takes legal steps over NHI ads for jobs that don’t yet ‘exist’
Solidarity: Judgment reserved in application to have NHI ‘certificate of need’ declared invalid
Crisp: We’re not going to backtrack on implementation of NHI
Political battle lines drawn as NHI Bill deliberations start
Submissions: NHI Bill has serious constitutional and human rights implications
Every sector presenting on NHI Bill warned of the dangers of corruption
Mediclinic Group’s grave warnings to Parliament over NHI Bill
IRR submission on NHI Bill: ‘Blatant elite enrichment’