NHI suffers blow as High Court rules sections of Health Act are ‘unconstitutional’

Motsoaledi

Cape Town — The National Health Insurance (NHI) has been dealt a blow after the Gauteng High Court declared sections 36 to 40 of the National Health Act unconstitutional.

The sections mentioned above call for doctors to register for a “certificate of need” and Judge Anthony Millar ordered Minister of Health, Aaron Motsoaledi and the Department’s director-general to cover the applicants’ costs, The Citizen reported.

Trade Union, Solidarity, and its CEO, Dirk Hermann, said the judgement was a significant breakthrough in the fight against the NHI, and he said the state’s goal with sections 36 to 40 was to pave the way for the “NHI and to compensate for the bankruptcy of the state coffers.”

“The government wants to change to a system in which health care is nationalised and health care practitioners become servants of the state so that the state can centrally control the provision of all health care. This victory thwarts those disastrous plans,” he said.

He said the “certificate of need” is so the Health Department can exert more control over where doctors and medical professionals can practice in a specific area of the country.

According to TimesLIVE,  Judge Millar ruled that sections 36 and 40 of the National Health Act were invalid “in its entirety” and that the government had the power to determine where medical practitioners may practise.

He said the certificate of need was “not rational” and there was no connection between the certificate of need scheme and its implementation and the purpose for which it was enacted.

“If the conditions are not accepted and no certificate is issued, the private healthcare establishment and private healthcare providers’ services are no longer able to operate where they have been,” he said,

If our lives are on the line, we will ensure the public health system works.

“They will become unavailable to the persons who relied upon them. The right to access private healthcare establishments and private healthcare providers is accepted in our law. This is particularly important in circumstances where the private healthcare establishments and providers can offer services not yet available in the public sector,” Millar said.

Solidarity argued that the requirement for a certificate of need infringes on the rights of health practitioners to practice their professions. He said that, if the sections come into effect, it would amount to the expropriation of health practitioners’ businesses and their property at the expense of the practitioners.

According to Daily Maverick, Solidarity’s application was supported by the Alliance of South African Independent Practitioners Associations, the South African Private Practitioner Forum, the Hospital Association of South Africa and a group of doctors in private practice.

Hermann said the judgment was a “major blow” to the NHI idea and its principle of central management.

“This judgment is a major blow to the total NHI [National Health Insurance] idea, as the principle of central management is a core pillar of the NHI Act itself. A more extensive consequence of this ruling about the certificate of need is that parts of the NHI Act are now probably also illegal in principle.”

He said the NHI cannot be implemented in its current format as the essence of the NHI is central planning, which has been deemed unconstitutional. He added that Solidarity would also fight the National Health Insurance Act in court and specifically provisions that allow for the centralisation of funds for healthcare.

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Compiled by Matthew Petersen

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