Health minister shoots down ‘anti-NHI propaganda’
Health minister Aaron Motsoaledi has described the latest High Court ruling declaring sections of the National Health Act unconstitutional as “deeply concerning” – while calling any attempts to relate it to the National Health Insurance Act “propaganda”.
The High Court this week ruled that sections 36 to 40 of the National Healthcare Act are invalid and unconstitutional.
The sections relate to the highly contested “Certificate of Need”, which the National Department of Health wants to adopt to exert more control over where doctors and medical professionals can practice in the country.
Had the laws stood, no person would be able to operate an existing health establishment, increase the number of beds in such an establishment, or construct or open a new health establishment without being in possession of one of these certificates.
The High Court found that the certificate of need regime was “objectively not rational”, gives the director general of health wide-reaching powers, and could lead to the removal of healthcare services from those who depend on them. The ruling will be sent to the Constitutional Court for confirmation.
According to union Solidarity, which brought the case against the laws, the ruling in its favour dealt a significant blow to what it said was a central pillar of the entire NHI concept—the centralisation of power in the healthcare sector and what it called the nationalisation of private healthcare.
The union said that the court ruling laid a foundation for future court challenges against the NHI based on the same arguments brought against the certificate of need. Some healthcare experts have agreed with this view.
However, Motsoaledi said that the ruling has nothing to do with the NHI and that trying to relate it to the recently signed NHI Act was akin to ‘state capture propaganda’.
“We have been inundated with calls and enquiries from concerned people who were made to believe that indeed NHI has been declared unconstitutional by a Court of Law.
“It has become apparent to us that some organisations and individuals who are using the judgement to criticise NHI have not even read (National Healthcare) Act, and hence are not in a position to understand what Wednesday’s judgement all is about. Nevertheless, they have even started celebrating their perceived demise of NHI.”
The minister said that the sections of the law that have been ruled unconstitutional were drafted 20 years before the NHI Act became law and had nothing to do with the NHI scheme.
“It is pure mischief to assert a connection and is a part of the deliberate campaign to discredit the NHI,” he said.
The minister said that the department differed from the ruling and stressed that the certificate of need had a “legitimate government purpose” in line with other sectors—such as the pharmacy sector—and other countries.
The department previously explained that the certificate of need was for planning purposes, to restore balance in a supply-side-dominated landscape where healthcare facilities disproportionately show up in over-serviced areas.
The minister has characterised the latest court ruling as the High Court choosing to protect property rights over healthcare rights.
“As a constitutional democracy, we fully respect the mandate of the court to arbitrate on any issue which is a subject of contestation by different sections of society.
“However as far as this present judgement is concerned, we respectfully wish to differ with the honourable court.”
The minister said that it is common cause that any section of an Act declared unconstitutional by a court of law, must be confirmed by the Constitutional Court.
“Ordinarily, there would have been no need for us to appeal to the Constitutional Court because the matter is heading there anyway. Nevertheless, we will still consider all our options, including an appeal,” he said.
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