ConCourt strikes down NHI ‘Certificate of Need’ provisions what it means for Gauteng

What the court decided

Judge Kate Savage found that the CON provisions are unconstitutional in their entirety and said there was no purpose in suspending the declaration of invalidity or referring the matter back to Parliament. Parliament remains free to legislate anew within constitutional bounds, the judgment said.

Who brought the case

The application challenging the CON scheme was brought by trade union Solidarity, the South African Private Practitioners Forum and several other applicants against the Minister of Health. Solidarity said it celebrated the ruling and described it as a major victory for healthcare practitioners and the public.

“One of the NHI’s (National Health Insurance Act) central pillars has collapsed today. The Certificate of Need was far more than merely an administrative instrument. It was an instrument of centralisation and state control,” said Anton van der Bijl, Deputy Chief Executive of Solidarity.

What the CON was designed to do

The Department of Health had intended the CON scheme to regulate where doctors and other healthcare professionals may practise. Under the provisions, both healthcare service providers and facilities would have had to apply for a certificate for the place where they wished to render services.

Why the courts found the provisions unconstitutional

The Gauteng High Court found the provisions failed to consider the social, professional and financial impact on owners of private health establishments, private health service providers, and private healthcare workers. Judge Savage agreed, saying the scheme’s means were not rationally connected to its aim of broadening access through equitable geographic distribution of services.

Judge Savage noted the impugned provisions could permit the Director-General to ignore the rights and interests of health establishments, agencies and providers, including their right to choose their trade, occupation or profession freely. On their face, she said, the provisions were unduly restrictive and not tailored to balance competing rights and interests.

What this means for Gauteng providers and patients

For doctors, clinics and private health facilities in Gauteng the judgment means the CON requirements will not be enforced as they were written in the impugned provisions. The ruling removes the immediate legal obstacle that would have required health professionals and facilities to seek government permission to practise in particular locations.

For patients in Gauteng, the judgment preserves the current status quo of where private practitioners may offer services until Parliament, if it chooses, drafts new legislation within constitutional limits. The court emphasised that no administrative disruption would arise from severing the impugned provisions, because they had not yet come into operation.

Next steps

The court made clear that while these provisions are invalid, Parliament is at liberty to create a new regulatory framework so long as it respects constitutional rights. Any future legislative attempt to regulate the location of services would need to be rationally connected to its stated purpose and carefully balanced against the rights of providers.

All facts in this report are drawn from IOL.