Court deals massive blow to the NHI

[Nat Quinn]

The National Health Insurance (NHI) has been dealt a major legal blow, with the Gauteng High Court ruling that provisions of the National Health Act that force doctors to register for a “certificate of need” are unconstitutional.

Trade union Solidarity chief executive, Dirk Hermann, who took the case to court along with groups representing private practitioners, shared parts of the ruling on Wednesday (24 July), where Judge A Millar ruled that sections 36 through to 40 of the National Health Act are invalid “in their entirety”.

The sections relate to the highly contested “Certificate of Need”, which the National Department of Health wants to adopt to exert more control over where doctors and medical professionals can practice in the country.

Legal experts at Werksmans previously explained that the NHA’s provisions for a certification of need would make it that no person may operate an existing health establishment, increase the number of beds in such an establishment or construct or open a new health establishment without being in possession of one of these certificates.

“The definition of a health establishment is incredibly wide and would easily include almost any place where a health service is available, including pharmacies, a general practitioner’s consulting rooms and hospitals,” the firm said.

“Accordingly, the certificate provisions of the NHA have universal application to all places where health-related services may be obtained in the country.”

Solidarity challenged the constitutionality of the certificate in December 2021, with a June 2022 ruling finding in its favour and declaring the sections invalid and unconstitutional.

However, this judgement was later rescinded after the department argued successfully that it had not been informed of the proceedings (it did not oppose the court challenge or appear for any of the proceedings).

The Constitutional Court said in December 2022 that the lower courts should decide on the matter, which resulted in the matter going back to court—this time with the department’s response in tow. The latest case was heard in March 2024.

In its application Solidarity argued that the requirement of a certificate of need infringes unlawfully on the right of health practitioners to practise their profession.

Solidarity said that had these sections come into effect it would have amounted to the “expropriation” of health practitioners’ businesses and their property at the expense of both the practitioners and those who are currently making use of 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 simply always apply its wide discretions responsibly. A government should not have such powers at all,” Hermann said.

The High Court has now reached the same conclusion, re-declaring sections 36-40 invalid and unconstitutional.

This was on the basis that the certificate of need regime was “objectively not rational”, gives the director general of health wide-reaching powers, and could lead to the removal of healthcare services from those that depend on them.

The ruling will have to be confirmed by the Constitutional Court, and as such will be filed with the Registrar of the Constitional Court, the judge said.

If the Constitutional Court confirms the ruling, or parts of it, it typically gives lawmakers two years to ammend the country’s laws to address the unconstitutionality.

BusinessTech reached out to the National Department of Health for comment on the ruling and it said it was working on a response. The article will be updated once received.

The full ruling is below:

NHI impact

While the latest court ruling does not relate to the National Health Insurance Act directly, the provision of the certificate of need is a fundamental tool the government needs to ensure that it can control how healthcare providers operate, whether in the public or private sector.

One of the chief architects for the NHI, Dr Nicholas Crisp, previously justified the certificate as being crucial for planning purposes and to restore balance in a supply-side-dominated landscape where healthcare facilities disproportionately show up in over-serviced areas.

He said the certficate would ensure that healthcare facilities don’t pop up “higgledy-piggledy”.

The NHI is rooted in the government’s drive to give “equal” healthcare to all people in South Africa, which would set up the state as the sole purchaser of healthcare services and ultimately abolish private funding and medical aids.

Under the scheme, medical and healthcare practitioners will have to register with the scheme to provide services, and there will be a cap on how much they can charge. With the certificate of need in effect, they would be restricted in where they could practice.

Even practitioners opting to sideline the NHI would be restricted from practicing where they choose.

“The government wants to change to a system in which health care is nationalised and health care practitioners become servants of the state so that the provision of all health care can be centrally controlled by the state. This victory thwarts those disastrous plans,” said Hermann.

The union said that a ruling in its favour around the certificate of need would pave the way for future court challenges against the NHI Act in its entirety.

 

source:https://businesstech.co.za/news/government/784094/court-deals-massive-blow-to-the-nhi/

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