Judgment has been reserved after the Constitutional Court heard arguments today on whether sections 36 to 40 of the National Health Act 61 of 2003 are unconstitutional in that doctors first obtain a Certificate of Need (CON) before they can work at a specific location.

The CON scheme was declared unconstitutional by the High Court of South Africa at the Gauteng Division in Pretoria during July last year and was referred to the Constitutional Court for confirmation.

Last year’s landmark judgment overturned health legislation that dictated where doctors and private health care professionals may practice.

The parties which sought for the scrapping of the affected sections, among other reasons submitted that the Director-General of the National Department of Health has the authority to issue, renew, or deny these certificates and if granted, the D-G could impose conditions on the certificate including stipulations regarding the nature, type or quantum’ of services, the deployment of human resources and the use of diagnostic and therapeutic equipment.

The high court declared that sections 36 to 40 of the National Health Act 61 of 2003 are invalid in their entirety and are consequently severed from the Act. 

The CON would require healthcare professionals to obtain government permission before opening new practices or facilities, intending to improve equitable distribution of health services.

The Department of Health wanted to adopt the scheme in a bid to regulate where doctors and health-care professionals could practice in the country.

Broadly speaking, the scheme requires both healthcare service providers and facilities which offer healthcare services (by healthcare service providers) to apply for the CON for the place where they wish to render services.

The high court found the provisions to be in breach of a number of constitutional rights. 

It found that they do not consider the rights of owners of private health establishments, private health service providers, and private healthcare workers on the social, professional and financial impact of the provisions on them.

According to trade union Solidarity and other parties, the provisions of the CON scheme are not concerned with the maintenance of professional standards of practitioners or with the standards to which health facilities are to be constructed or operated.

The scheme is not aimed at regulating how services are rendered but rather the place where they are to be rendered, they also submitted.

Justice Rammaka Mathapo during the hearing on Tuesday, said: “One cannot shy away or move away from the fact that the elephant in the room is that our health system is failing or has failed. Whether the CON is a necessary panacea to resolve it, I don’t know. Whether transfer of resources to far-flung remote areas as the government says, may be good, may not be good. 

“But, sitting as I am, it’s difficult for me to shrug my shoulders and say that because people in the city centre or in urban areas have access to those rescues, be better off than the people in the far-flung areas.” 

 chevon.booysen@inl.co.za

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