Court says NHI may not instruct where private health practitioners must work

Solidarity’s challenge of an aspect of the National Health Insurance (NHI) was successful when the Pretoria high court found that it was invalid to determine where private health practitioners may practise.

The union approached the high court along with the Alliance of South African Independent Practitioner Associations, the South African Private Practitioner Forum, the Hospital Association of SA and four other applicants to challenge the health minister, the health department’s director-general and President Cyril Ramaphosa on the validity of the “certificate of need”.

The controversial “certificate of need” was adopted by the health department to control where doctors and medical practitioners may practise once the NHI officially starts. 

Judge Anthony Millar ruled that, in terms of sections 36 and 40 of the National Health Act, it was invalid "in its entirety" that the government had the power to determine where medical practitioners may practise.

Instead, the certificate of need will affect access to private health establishments and private service providers if it is accepted.

“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.

“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 are able to offer services not yet available in the public sector,” Millar said.

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.

He further ordered that the judgment be directed to the Constitutional Court within 15 days for confirmation of the order of invalidity the high court made and ordered that the minister, the director-general and the president pay the costs.

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

“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.

“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.”

Solidarity said it would continue to challenge the NHI Act, particularly the centralisation of funds for healthcare.

“Solidarity will, therefore, continue its litigation against the NHI in its entirety and is now in a very strong position to achieve victory in court,” Hermann said.

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