Court declares sections of health act unconstitutional in major blow to NHI

The National Health Insurance (NHI) has been dealt a major legal blow after the Gauteng High Court in Pretoria declared sections 36 to 40 of the National Health Act  that force doctors to register for a “certificate of need” are unconstitutional.

Judge Anthony Millar delivered the judgment on Wednesday, which ordered the Minister of Health Aaron Motsoaledi and the department’s director-general to pay the applicants’ costs.

Trade union Solidarity and several independent medical practitioners brought the case to court

Solidarity CEO Dirk Hermann described  the judgment as a significant breakthrough in its fight against the NHI.

State coffers

Hermann said the state’s goal with sections 36 to 40 clearly 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 provision of all health care can be centrally controlled by the state. This victory thwarts those disastrous plans.”

Sections 36 to 40 relate to the “Certificate of Need”, which the Health Department wants to adopt to exert more control over where doctors and medical professionals can practice in a specific area in the country.

Judge Millar ruled that sections 36 through to 40 of the  National Health Act 61 of 2003 are “invalid in their entirety and are consequently severed from the act”.

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Infringement

In its application Solidarity argued that the requirement of a certificate of need infringes unlawfully on the right of health practitioners to practise their profession.

Hermann said that had these sections come into effect it would have amounted to the expropriation, as it were, of health practitioners’ businesses and their property at the expense of both the practitioners and those who are currently making use of their services.

“In essence, these sections would have empowered the government to capture medical practices almost entirely and to manage them at will – rather than them being run at the discretion of the doctors.

“We cannot simply hope that the government would simply always apply its wide discretions responsibly. A government should not have such powers at all,” Hermann explained.

NHI Act

Hermann contends that Solidarity’s sights were still entirely set on the court battle against the NHI Act, which deals more specifically with the centralisation of funds for healthcare.

The Health Department said it was studying the court judgment and will consult the legal team for legal option on the next step, News24 reported.

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