The Constitutional Court's judgment which found the Certificate of Need to be unconstitutional, is said to be a major victory for healthcare practitioners.
Image: File
The Constitutional Court ruled on Monday that the “Certificate of Need” (CON) provisions in the Health Care Act - which controls where doctors work - are unconstitutional.
These provisions regulated that doctors first obtain a CON before they can work at a specific location. The CON scheme was declared unconstitutional by the Gauteng High Court, Pretoria earlier and was referred to the Constitutional Court for confirmation.
The application was brought by trade union Solidarity, the South African Private Practitioners Forum and several other applicants against the Minister of Health.
Solidarity meanwhile said it celebrates the Constitutional Court’s ruling and considers it a huge victory for healthcare practitioners and the broader public. The CON was one of the most important mechanisms by which the government wanted to exercise greater control over the health industry, it said.
“One of the NHI’s (National Health Insurance Act) central pillars has collapsed today. The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control,” Anton van der Bijl, Deputy Chief Executive of Solidarity, said.
Judge Kate Savage, who wrote the Constitutional Court judgment, said since the scheme reflected in the provisions is unconstitutional in its entirety, no purpose would be served if the declaration of invalidity were to be suspended or if the matter were to be referred back to Parliament.
“The impugned provisions have yet to come into operation, and no administrative disruption will arise from their severance from the statute. Parliament remains free to legislate anew, provided that it does so within constitutional bounds,” she ruled.
The Department of Health wanted to adopt the scheme in a bid to regulate where doctors and health-care professionals could practice in the country. The scheme requires both healthcare service providers and facilities which offer healthcare services (by healthcare service providers) to apply for the CON for the place where they wish to render services.
The high court found the provisions do not consider the rights of owners of private health establishments, private health service providers, and private healthcare workers on the social, professional and financial impact of the provisions on them.
Judge Savage, in finding the provisions to be unconstitutional, remarked that the issue is whether a rational connection exists between its legitimate purpose and the means adopted to achieve it. She pointed out that the means adopted must be neither capricious nor arbitrary and must relate to a defensible vision of the public good, coherently and with integrity.
The respondents argued that the scheme will achieve the purpose of broadening access to health care through advancing the equitable geographic distribution of health services. They contended that, in doing so, the scheme will “optimise resources” and “promote a spirit of co-operation and shared responsibility among public and private health professionals and providers”, as well as with other relevant sectors within the context of national, provincial and district health plans.
Judge Savage said what is not clear is that the means adopted, namely the imposition of the scheme, which requires the issuance of a certificate of need in order to provide health services, is rationally connected to the purpose for which the power was conferred.
She acknowledged that the impugned provisions are aimed at the laudable purpose of broadening access to health care through an equitable geographic distribution of health services. However, the provisions are not rationally related to this purpose.
The judge said the provisions, on their face, permit the Director General to ignore the rights and interests of health establishments, agencies or providers, including their right to choose their trade, occupation or profession freely.
“On the face of it, the impugned provisions are unduly restrictive and not tailored towards balancing the different rights and interests at stake…The limitations they impose on the right to choose one’s trade, occupation or profession are therefore not justifiable,” she said.
zelda.venter@inl.co.za