In a triumphant victory for the South African healthcare sector and Solidarity, the High Court in Pretoria has declared Sections 36 to 40 of the National Health Act – that would have given rise to the implementation of the much-contested Certificate of Need (CoN) – unconstitutional . The application, which was drawn and submitted by Solidarity Trade Union and other parties, argued that the proposed legislation unconstitutionally intervened in the provision of rational healthcare as it forced healthcare practitioners to obtain a Certificate of Need from the Department of Health before they could establish a practice in a specific area. The significance of the removal of this irrational red tape in an already struggling healthcare sector cannot be underestimated. This article first appeared on Med Brief Africa. â Nadya Swart
Death of a hugely shoddy law â the Certificate of Need
By Chris Bateman and Marietjie van den Berg
The controversial nearly two-decades old Certificate of Need, the CoN, which would have enabled government to tell doctors where they can practise and under what conditions, has finally been declared unconstitutional. The judgment by the High Court in Pretoria follows an application by the trade union, Solidarity supported by SAPPF, AISAPA and individual doctors. The judgment will now go to the Constitutional Court for evaluation before the two sections of the Health Act Sections 36 to 40 of the National Health Act that relate to the CoN can be scrapped. The respondents in the case, the Minister of Health, the DG and the President didnât oppose the matter in the High Court, and it still needs to be seen if they will contest it when it goes to the landâs highest court.
Considered one of the drivers of the exodus of South Africaâs young doctors to foreign climes once theyâd met their internship/community service obligations, the court victory was met with relief â and renewed disbelief and outrage at the governmentâs obstinance in pursuing it.
Ruling highlights unconstitutionality of legislation
Welcoming the judgment, SAPPF CEO, Dr Simon Strachan, said it was a no-nonsense ruling that very clearly highlighted the unconstitutionality of the legislation.
âI donât think anybody would deny that more healthcare providers are required in the rural areas but the vehicle to achieve it is not this CoN. If we are going to have healthcare providers going into rural areas, the working conditions have to change to make them more favourable. There should be some level of infrastructure and support and job security and opportunities for families. It is a massive task, but it does start at the ground level to ensure that patients get the healthcare they require,â Dr Strachan said.
âWe 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,â he cautioned.
âThe fact that the DoH has not opposed the application is interesting. The judgment is fairly critical about the DoH, the President and DG of Healthâs conduct around not responding at all, not even telling the court that they were not going to oppose it.
âWe certainly would have expected more involvement and commitment from the respondents. It feels like the authorities always stand on the outside and that they donât actually get involved in these things. What we really want to do to effect change is to sit down with government and come up with strategies to change things,â Dr Strachan said.
Dr Angelique Coetzee, immediate past chairperson of the SA Medical Association, (SAMA), and a board member of the Solidarity Doctors Network Advisory Board, said the blind pursuance of shoddily drafted legislation showed a huge lack of insight and proved that government did not listen to doctors.
âItâs stupidity. We have the type of government that thinks itâs a one-party state and that they know whatâs best for every one of us â that they can do what they want. Well, thatâs not going to happen.â
She endorsed the comments made by her SAMA predecessor as long ago as early July 2014 when the CoN was being aggressively promoted by then National DG of Health, Dr Precious Matsoso, saying his words were today more pertinent than ever. The then SAMA chairperson, Dr Mzukisi Gootboom said: âWe all know what needs to be done, but weâre not hearing each other. Itâs like a dialogue of the deaf. We implement things that pit us against each other. Itâs a reflection of the kind and quality of legal professional advice they, (the NDOH), are getting.â
Dr Grootboom added, âThe very intention of improving access may deny it, as doctors suddenly find themselves without licences and unable to practise â we cannot understand why government would promulgate a section of the law which they know is unconstitutional.â
Failure to follow the new law would have been punishable by a fine or five years imprisonment, or both. Certificates of Need were to be valid for 20 years.
Government âforcing its willâ
Coetzee asked, âWhen is this going to stop in our country? When will the ANC realise that they might be the governing party, but they cannot force their own vision on the rest of the country? They need to govern in the best interests of the whole country, taking everyone into consideration. You canât use your party politics to run a country.â
She said government should rather incentivise doctors to work in rural areas.
âThis, (CoN), is something that could never work, they didnât look at the consequences. Weâve 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 wonât help â only decent infrastructure, good administration and other incentives will,â she added.
She cited governmentâs sudden capitulation on Covid-19 face mask wearing this week, shortly after Solidarity took them to court to illustrate governmentâs bullheadedness. âIt wasnât because we were against masks, it was the principle of the thing â they would have lost, hands down,â she added.
Doctors agreed that rural areas with the fewest healthcare services stood to be hardest hit had the CoN been proclaimed into law by President Cyril Ramaphosa (the final step).
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 ânot necessarily lead to improved quality of healthcare as some doctors need to travel long distances or offer locums to limit travelling.â
She said GPs in her far north-eastern KwaZulu 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.
âThey often get students to do locums. So we can advocate for more rural practices, but without regulations, weâre still exposing the rural communities to poor quality care, even with a GP practice in their area.â
Healthcare staff viewed as âinanimate pawnsâ
Dr Hobe expressed serious reservations about the potential impact of NHI implementation, (of which the CoN was an integral part), on rural communities.
Delivering his judgment in the unopposed Solidarity application, Judge AJ Bokako said the CoN scheme permitted the National Health Director General to view health personnel as âinanimate pawns in pursuit of the stateâs objectives,â which constituted a violation of section 10 of the Constitution.
He added: âIn 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 dis-incentivises 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 â the government cannot promote the right to healthcare by making it undesirable for existing practitioners and new practitioners to render healthcare services.â
He said it was a strong sign that the law was unjustifiable when the state was unwilling to defend its legislation and âunaccountably refused to participate in these proceedings,â in spite of repeated attempts by the applicants to get the health department, State Attorneyâs office and the Presidentâs office to respond.
Even had each thought the other government party would respond on its behalf, this was ânot a good or lawful excuse,â Judge Bokako said. âEach had a direct and substantial interest in the outcome of the matter. Itâs palpably irrational for one state entity to merely assume that another state entity would respond to the litigation without making such inquiry (of the other),â he added.
Judge Bokako said that while the State had a constitutional duty to take âreasonable measures,â to further the progressive realisation of the right of everyone to health care services, âIâm not convinced that the disputed sections of the Act are coherent and consistent with the primary objectives of the Health Care Actâ.
The CoN scheme unjustifiably infringed constitutional rights, he said, awarding costs against the three government respondents.
At the time of posting this story, Deputy Director General of Health in the National Department of Health, Dr Nicholas Crip, had yet to respond to MedBrief Africaâs inquiries about what alternative mechanism the NDOH intends to deploy to provide greater, more equitable access to healthcare.
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 quickly iced when protests erupted and 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 âfait accompliâ, catching private healthcare professional bodies, hospital associations and NGOs by complete surprise. The battle has raged ever since. Yesterdayâs ruling seems to have finally drawn a line under it.
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