POLITICAL parties and civil society organisations have welcomed the Gauteng High Court, Pretoria, ruling that Certificates of Need (CoNs) in the National Health Insurance (NHI) Act were unconstitutional.
The act uses CoNs to determine whether health practitioners may establish or acquire a practice or provide health services.
According to the judgment handed down on Wednesday, the government would have the power to determine where medical practitioners may practise in terms of Sections 36 to 40 of the NHI Act, but these were ruled invalid in their entirety.
Trade union Solidarity, which brought the case to court together with other applicants, said it had achieved a major breakthrough in its fight against the NHI when a core pillar on which the state’s centralisation of health care rests was declared unconstitutional.
“This judgment is a major blow to the total NHI idea as the principle of central management is a core pillar of the NHI Act itself. A more extensive consequence of this ruling with regard to the certificate of need is that parts of the NHI Act are now probably also illegal in principle,” said Solidarity’s CEO, Dr Dirk Hermann.
“The NHI in its current format cannot be implemented as the essence of the NHI is central planning – and this has now been found unconstitutional,” Hermann said.
Court papers in this regard were served on the government in May after the NHI had been signed into law by President Cyril Ramaphosa.
DA MP and the party spokesperson on health, Michéle Clarke, also welcomed the ruling, saying it was important to note that it now had to go to the Constitutional Court for confirmation.
“The ruling has important implications for the implementation of the NHI Act as the act heavily relies on CoNs for the placement of service providers, like doctors or nurses, in specific communities,” Clarke said.
ActionSA MP Dr Kgosi Letlape said the party believed that Sections 36 to 40 were unjust in that they sought to require that health-care practitioners had first to obtain a CoN from the Department of Health before they could establish a practice in a specific area.
“Therefore, ActionSA wholly welcomes the court's intervention, which ensures that we uphold the rights of health-care practitioners, allowing them to operate without the weight of an overbearing bureaucracy,” said Letlape, who served as the chairperson of the South African Medical Association.
ActionSA said it contended that the NHI would merely add a third tier to the existing public and private health-care systems, creating a loophole for budgetary irregularities that could enable corruption and further collapse the health-care system.
“ActionSA therefore calls on the government to start by implementing the Health Market Inquiry recommendations from 2018, instead of pursuing ill-conceived policies that will do far more harm than good,” Letlape said.
“We also reiterate our call that public representatives, particularly members of Parliament, must start using public health-care services.”
Meanwhile, speaking during the latest PSG Think Big webinar on what lies ahead for South Africa in this new political era, political analyst, commentator and writer Justice Malala said the Government of National Unity must reach consensus on areas of contention in the critical first 100 days.
Using the example of the DA’s focus on fixing the issue of skills migration, he explained that the DA may agree to concede on certain aspects of the NHI implementation, provided they were given leeway to work on easing the visa regime to bring in skilled workers.
“The parties must avoid fighting every battle but rather slice it up according to the skills and interests of each – and what each one can realistically achieve. Humility is therefore key over the next few months,” he said.
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