In a groundbreaking judgment for the medical profession, the Gauteng High Court, Pretoria, overturned health legislation that dictated where doctors and private health care professionals may practice.
Judge Anthony Millar declared sections of the National Healthcare Act invalid as they are unconstitutional.
This followed a challenge against the Certificate of Need, which the Department of Health wanted to adopt in a bid to regulate where doctors and health-care professionals can practice in the country.
The application was launched by trade union Solidarity and other parties that represented private practitioners. The applicants included private hospitals, pharmacies, clinics, and private rooms set up by any health-care provider, even if the rooms are private and within the home of the health-care provider.
Judge Millar said the Certificate of Need was “not rational” and there was no connection between the Certificate of Need scheme, its implementation and the purpose for which it was enacted.
Broadly speaking, the Certificate of Need scheme requires both health-care service providers and facilities that offer health-care services (by health-care service providers) to apply for a Certificate of Need for the place where they wish to render services.
The provisions of the Certificate of Need scheme are not concerned with the maintenance of professional standards of practitioners or with the standards to which health facilities are to be constructed or operated, Judge Millar noted.
The Certificate of Need scheme is not aimed at regulating how services are rendered but rather the place where they are to be rendered.
The Act provides for the establishment of norms and standards applicable to health services. Although the provisions are operable, there are at this stage, still no norms and standards that have been put in place, Judge Millar said.
Besides applying to all new entrants to the market in a particular area, the Certificate of Need scheme places a time limit on any certificate that may be granted for a period of up to 20 years. After 20 years, a renewal application must be submitted.
Through the issuing of Certificates of Need, the number of both health-care practitioners and facilities such as hospitals or private medical practices which are permitted by law to operate within a particular area can be limited.
The scheme criminalises the provision of health-care services in a particular area or the operation of a facility if a Certificate of Need has not been issued.
As the regulations have not yet been promulgated, Judge Millar said the Certificate of Need scheme is, without the necessary regulations, inchoate.
“Until there are regulations, the Certificate of Need scheme can never become operative,” said Judge Millar.
It was argued on behalf of the health ministry that whatever the shortcomings of the sections that the applicants assert, these must actually eventuate, and it is only after the proclamation of the sections (together with their regulations) that any challenge should be mounted.
A central tenet of this argument was that the regulations to be promulgated may cure such shortcomings if there were indeed any.
In countering this argument, the applicants argued that the fact that the relevant sections were not yet operative did not prevent the court from enquiring into the validity of the provisions.
Solidarity argued that the requirement for a Certificate of Need infringed on the rights of health practitioners to practice their profession. It was further argued that the scheme impairs the human dignity of individual health-care providers and health-care workers; their right to be treated with worth; and the ability to support themselves and their families.
It was argued that the scheme “tramples” on the choices that health-care providers have made for their own lives. This includes where they want to reside, the places they wish to send their children to school and the communities to which they belong.
Judge Millar said the Certificate of Need scheme does not purport to regulate the health-care workers and health-care practitioners insofar as the rendering of their services is concerned.
“It rather, in its terms, represents both a barrier to entry as well as being able to continue with the provision of those services,” he said.
Objectively, the Certificate of Need scheme is not rational, the judge added.
“There is no nexus between the scheme and its implementation and the purpose for which it was enacted.”
He ordered that a copy of his judgment be sent within 15 days to the Constitutional Court, which will have the last word on the subject.
Pretoria News
zelda.venter@inl.co.za
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