News Desk | NHI
 

Latest NHI Court ruling: Solidarity 1, Department of Health 0

Time to read: 2 minutes 43 seconds
 

8 August 2024,  09:30

Contributor: Linda Ravenhill
 

The NHI has been dealt yet another blow, with the Gauteng High Court ruling on 24 July that provisions in the National Health Act which would force doctors to register for a Certificate of Need (CON) are unconstitutional. The case, first brought by Solidarity SA in December 2021, has had a somewhat bumpy road to get to this point. 

In June 2022, the courts ruled in favour of Solidarity, declaring that sections 36 through 40 of the National Health Act were “invalid and unconstitutional.” The decision was later rescinded when the Department of Health objected, stating that it had not been informed of the preceding. The matter was then referred to the Con-Court, which ruled in December 2022 that it should be referred back to the lower court. 

This latest ruling, based on the case heard in March 2024, saw Judge A. Millar reach the same conclusion as the initial 2022 ruling, namely that sections 36 through 40 of the National Health Act are invalid “in their entirety.”

What exactly is this Certificate of Need?  In brief, no person would be able to operate an existing healthcare establishment, open a new healthcare establishment or even increase bed capacity without being in possession of this hallowed document.  Section 36(2) of the NHIA deals with the process of applying for the CoN, which involves an exhaustive series of requirements, including elements such as demographic need, how well it fulfils the goals of the Employment Equity Act No. 55 of 1998, and whether it fits within the government’s current planning, to mention but a few. 

If you’d like to know more about the CoN, Niel Kriby and Siphosakhe Phakathi from Werksmans Attorneys have an excellent explanation on the Werksmans website.

What’s Next?

The ruling will now need to be confirmed by the Constitutional Court. If the decision is upheld, lawmakers would have approximately two years to amend the country’s laws to address the unconstitutionality element.

Unsurprisingly, the ruling has been hailed as a victory by Solidarity and various public interest groups.

Unsurprising too, the Department of Health is less than pleased. In a statement released on 25th July, it accused the media of misleading the public with sensationalist claims regarding the fate of the NHI, stating that the media's representation of the decision had been nothing short of ‘Bell-Pottinger’ style propaganda.  In the longer-than-usual press statement, they note that the requirement for a CoN is not unique - at least fourteen other countries, including the UK, New Zealand and Australia, have similar regulations relating to the licensing of healthcare establishments. 

Of interest to this writer, the Department has pointed to inconsistencies in public and legal responses. First, they point out that similar provisions for CoNs exist in the Pharmacy Act, which has not been contested. Second, they point out that the sections of the Act that have been ruled unconstitutional are not new—they were part of the existing National Health Act 2003 (Act 61 of 2003). 

It’s a long and detailed response, which concludes by likening the ongoing court battles around the NHI to the arguments used in relation to land redistribution. The full media release can be found here.

With strong words and fighting language on all sides, it appears this battle is just getting started 



This story was collated with information obtained from various sources, including:

Werkmans Attorneys |  25 May 2024 |  Certificate of need in the healthcare sector:not needed
Department of Health Media Statement | 25 July 2024 | Health Ministry responds to court judgement on the invalidity of sections of the National Health Act (PDF)
BusTech | 24 July 2024 | Court deals massive blow to the NHI 


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