Assertions that the “certificate of need” (CON) provisions in the National Health Act (NHA) are connected to National Health Insurance (NHI) are “purely mischief” and part of a “deliberate campaign to discredit NHI”, says the Ministry of Health.
Last week, the High Court in Pretoria declared sections 36 to 40 of the NHA to be unconstitutional and should be struck down. These sections state that healthcare professionals and healthcare facilities must apply to the director-general of health for a CON and criminalise the provision of health services or the operation of a health facility in a particular area without such authorisation. They will have two years to apply for a CON after the scheme is brought into effect, and certificates will be valid for up to 20 years.
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In a statement on Thursday, the Ministry of Health said it fully respects the mandate of the court to arbitrate on any issue that is contested by different sections of society.
“However, as far as this present judgment is concerned, we respectfully wish to differ with the honourable court. We note that while we execute our mandate of provision of healthcare as a human right, the court seems to have placed economic property rights at the expense of the right to health.
“It is very unfortunate that while we live within the borders of the same country, we seem to be existing in two different worlds – one world where it is believed that the right to health must reign supreme and the other world of economic property rights for the privileged few, where the welfare of human beings counts for nothing.
“We are even struggling to understand how a right to health by all people in our country interferes with other people’s rights to own property,” the statement said.
Any section of an Act declared unconstitutional by a court of law must be confirmed by the Constitutional Court.
“Ordinarily, there would have been no need for us to appeal to the Constitutional Court because the matter is heading there anyway. Nevertheless, we will still consider all our options, including an appeal,” the ministry said.
‘Nothing to do with NHI’
The ministry said the sections of the NHA that have been ruled unconstitutional were drafted 20 years before the NHI Act and “have nothing to do with NHI”.
It said the NHA (Act 61 of 2003) repealed the Health Act (Act 63 of 1977), which enabled the Minister of Health to make regulations in respect of private hospitals, nursing homes, maternity homes, or other similar institutions.
The NHA sought to provide a far broader mandate that aligns with contemporary developments in health than simply providing for private hospital licensing. The Act intends to regulate all health establishments, not only hospitals, the ministry said.
Sections 36 to 40 of the NHA were not promulgated when the Act came into effect in 2004, resulting in “a lacuna or gap in regulating health facilities”. During this gap, a myriad of unregulated health facilities “cropped up”.
It said the CON has two important objectives:
- Regulate the quality and standard of healthcare provided in a particular facility.
- Determine whether an intention to establish or extend a facility, or increase the number of beds, or instal equipment is appropriate for a particular area.
“It is because of this legitimate government purpose that many other countries also have a CON,” the ministry said, listing Australia, Canada, India, Kenya, Malaysia, New Zealand, Nigeria, Philippines, Singapore, Sri Lanka, Tanzania, Uganda, the United Kingdom, and the United States as among the countries with similar laws. Some of these countries do not have NHI or any form of universal health coverage.
‘But you said it’
But trade union Solidarity, which was one of the applicants in the case against the CON, said the Ministry of Health itself has made statements about the “strong connection” between the NHI Act and sections 36 to 40 of the NHA.
In a statement on Friday, it said the Department of Health’s spokesperson, Foster Mohale, has been quoted repeatedly in the past where he came to the same conclusion when the sections were declared invalid for the first time in 2022.
A Business Day report of 27 June 2022 quoted Mohale as saying: “This has serious implications, as it will limit adequate access to healthcare services to the most vulnerable members of society and will have serious implications for the NHI and its implementation.”
Theuns du Buisson, economic researcher at the Solidarity Research Institute, said Dr Nicholas Crisp, the department’s deputy director-general, also considered the first judgment on the relevant sections as critical to NHI.
He said the Department of Health would like to portray the High Court’s judgment as an attack on the less fortunate, whereas it has “nothing to do with a battle between the rich and the poor”.
The ruling guarantees and protects health practitioners’ freedom under the Constitution. “If a doctor wants to be able to choose where and for whom he wants to work after years of training, it must be respected like any other person’s career choice,” Du Buisson said.
‘Doctors should not be able to practise anywhere’
The Ministry of Health’s statement noted that the Competition Commission’s Health Market Inquiry raised concerns about the absence of a coherent licensing regime.
The inquiry’s final report, which was published in September 2019, recommended that a standardised centralised licensing regime should be implemented to address the unequal access to healthcare.
In addition, the objectives of sections 36 to 40 of the NHA are being opposed, whereas the Pharmacy Act provides for the same objectives, “but nobody is challenging it, or even worried about it”, the ministry said.
“Where are these property rights when it comes to the location of pharmacies? It is well known that one cannot just place a pharmacy anywhere in the country, because there are rules that regulate that.
“Currently, after obtaining a practice number, a doctor can practice anywhere (whether in their office, bedroom or boot of a car, or even hire premises next door to a tavern). Nobody can do anything about it.”
The ministry said the Health Professions Council of South Africa, a statutory body that registers doctors, cannot provide a comprehensive list of where healthcare workers are practising if they are not in public healthcare facilities. Likewise, the Board of Healthcare Funders, which provides private health practitioners with a practice number empowering them to claim money from medical schemes, cannot with certainty state where practitioners are practising or in what type of facility they are practising.
“Why is it that in this country you cannot just erect a filling station anywhere or erect a huge mall anywhere, but a healthcare facility is not supposed to be regulated similarly? Where are property rights in these other instances?”
‘Bell Pottinger propaganda’
The tone and phrasing of the ministry’s statement call into question commentary that the ANC is prepared to make significant concessions on NHI.
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It said what is “even more concerning and disappointing” than the High Court’s ruling is “misleading media headlines” that characterise the judgment as a huge blow to NHI.
“We must concede that this propaganda has been hugely successful and is in the same mould as the Bell Pottinger propaganda machine of State Capture days.”
It was apparent that some organisations and individuals who are using the judgment to criticise NHI have “not even read” the NHA and hence are unable to understand what the judgment is about. “Nevertheless, they have even started celebrating their perceived demise of NHI.”
The ministry said the “war” being conducted in the courts, media, and public institutions about the provision of healthcare “is a proxy war between the rich and the poor and not between the rich and the state. That is why the judgment emphasises on property rights, exactly the same argument which is presented in courts when the poor black majority want access to land. For our part as a department, we will at all times take the side of the poor.”
