SECTION27 on the CoN judgment

On 27 January 2015, the Constitutional Court handed down a decision related to certificates of need, bringing to an end the controversy over the President’s proclamation of the relevant sections of the National Health Act.

The certificate of need provisions require health care professionals to obtain a certificate of need in order to establish, construct, modify or acquire a health establishment (including a practice, a clinic, a hospital etc., whether public or private). A decision on whether to grant a certificate of need would take into account the equitable distribution of health services in a geographic area or to a particular population, among many other factors. The purpose of issuing certificates of need is to better and more equitably use all of the health resources available in the country to fulfill the rights of everyone to access to health care services. Possession of a certificate of need would allow a health care facility to be accredited to provide services at state cost under National Health Insurance. Finally it would signify compliance with a set of standards to be met by public and private health care providers.

While the provisions of the NHA were not new, they had not previously been proclaimed. However, the President’s proclamation of them brought the provisions into effect. The President and the National Department of Health approached the Court to reverse the proclamation when it was established that it had been made without the necessary regulations being in place (the regulations were required to enable those affected to comply with the requirements of the Act), and that the result was that health care service providers practicing without a certificate of need (because they were unable to obtain one pending the promulgation of regulations) were acting unlawfully in doing so.

SECTION27 welcomes the decision of the Constitutional Court. As has been provided in previous Constitutional Court decisions, where legislation cannot be effective without appropriate regulatory infrastructure, it should not be promulgated. In this case, the hasty proclamation led to uncertainty and allowed neither the Department of Health nor health care service providers and other interested parties properly to consider the consequences of the provisions, which could limit a number of constitutional rights, and to establish the way in which the provisions could be implemented to prevent such limitation. This resulted in a rushed, unnecessarily adversarial, and incomplete consultation process on the regulations.

That being said, it is important, in the light of the move towards a National Health Insurance system, that the inequitable distribution of health care providers is addressed – not by forcing health care providers into rural and underserved areas, which was never the approach of the Department of Health – but by incentivizing participation in National Health Insurance, providing opportunities for health care providers to practice in under-served areas and serve under-served populations, and enforcing quality standards to improve the quality and accessibility of health care services for all in South Africa.

We look forward to a reopening of a national discussion on National Health Insurance including certificates of need, following the decision of the Court, and to the necessary move towards quality health care services for all and the realization of the right of everyone to access to health care services.

You can read the full judgment here.