Court: Medics may practise where they choose, but NHI cannot be implemented

Doctors are delighted at the ruling of the High Court in Pretoria on Wednesday that legislation allowing the government to determine where health professionals can practise is unconstitutional.

The successful application by the trade union, Solidarity, the Alliance of South African Independent Practitioners Associations, the South African Private Practitioner Forum and the Hospital Association of SA is a setback for National Health Insurance (NHI), which relies on the certificate of need as the principle of central management that is a core pillar of the NHI Act.

Judge A Millar ruled that sections 36 to 40 of the NHI Act are invalid “in their entirety”.

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Former SA Medical Association chair Dr Angelique Coetzee said doctors were pleased by the ruling.

“This saga has been going on since 2003 and now, 21 years later, we finally have a verdict where it was ruled unconstitutional. Unfortunately, this judgment is also a blow to the whole NHI idea.

“The principle of central management was a core pillar of the NHI.

“More extensive consequences of this ruling about the certificate of need as part of the NHI Act are now unconstitutional.”

Coetzee said it meant doctors could now practise where they wanted to and that NHI in its current form cannot be implemented.

“The main purpose was to regulate the distribution of health establishments and where doctors could work. Doctors would have received certificates valid for 20 years and have to reapply,” she said.

GNU compromises

Political analyst Piet Croucamp noted there was willingness to compromise in the spirit of the government of national unity.

“The private sector has been threatening to take this matter to court and now they have done so and have some success.

“But it must be seen in the context that the president has already made it clear he is willing to negotiate on the NHI regime.

“It’s not just one Bill. There will be many Bills that will have to be formally approved and amended for the NHI to come to fruition.

“If you negotiate changes to this Bill, you negotiate from a stronger platform if you have won a court case than if you have lost it,” he added.

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The Hospital Association of SA welcomed the judgment, but said it was “disappointed that a legal challenge to the planned certificate of need was necessary”.

“We would have preferred achieving the objective of a stronger health system through a negotiated and collaborative effort to increase the number of medical students and nurses in medical training facilities to address the health care system’s needs.

“South Africa is grappling with a severe shortage of doctors and specialists.

“While the national population has almost doubled since 1994, the number of new medical training facilities opened is insufficient.

“With almost half the nurses in the country aged 50 or over and fewer new nurses entering the profession, the nursing situation is dire and requires immediate attention.

“It is more appropriate for the government of national unity to focus efforts on effective and collaborative health system reforms to address health resource challenges.

“The private hospital members of the Hospital Association of South Africa sector stand ready to engage.”

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‘Too many pay taxes plus medical aid’

Organisation Undoing Tax Abuse CEO Wayne Duvenage said the organisation supported effective universal health care.

“However, from what we have observed to date, there is insufficient clarity on the financial and administrative model being adopted.

“We disagree with the minister’s recent statement that accuses people with medical aid schemes of double-dipping into the collective healthcare pot.

“It is quite the opposite in that too many people are paying taxes and then having to pay for medical aid as an additional expense to ensure they receive quality health care. This leaves the poorer sectors of society at the receiving end of poor medical and healthcare by the state.

“Those who pay for medical aid are reducing their impact and use of the government’s health care resources, which frees up resources to be used on those who cannot afford private healthcare,” he said.

ALSO READ: What you need to know about SA’s medical aid schemes and NHI

Duvenage said the state should pay more attention to addressing the improvement of health care service delivery.

ActionSA MP Dr Kgosi Letlape said: “The NHI, while well-intentioned, is ill-conceived and will not address the shortcomings of the health care system.

“It will merely add a third tier to the existing public and private health care systems. This will create a loophole for budgetary irregularities that could enable corruption and further collapse the health care system.”