Sakeliga welcomes ConCourt ruling on key pillar of healthcare freedom

Sakeliga welcomes yesterday's Constitutional Court judgment in favour of Solidarity and other applicants, which strikes down what the state itself described in court as "a central pillar" of the National Health Insurance Act (NHI Act).

The Court unanimously declared sections 36 to 40 of the National Health Act – the Certificate of Need scheme – unconstitutional and severed them from the Act.

The Certificate of Need would have afforded the state the power to prescribe to healthcare practitioners where they may practise and the services they may render.

The Constitutional Court has duly recognised the professional freedom of medical practitioners, the operational rights and realities of private health establishments and the importance of patient care.

The judgment also strengthens the broader case against the NHI itself, while making the state's practical task of implementing the NHI substantially more difficult.

At least three findings in yesterday’s judgment are relevant to the broader case against the NHI:

1. The state cannot rely on good intentions as a substitute for evidence
   
   The state must produce objective evidence that its scheme will actually achieve its stated purpose. No such evidence was advanced for the Certificate of Need. The state faces a comparable evidentiary lack with its NHI proposal, which purports to deliver private-standard healthcare to tens of millions more people at lower cost without compromising on quality – an extraordinary claim that runs against a vast body of expert testimony and for which the state has furnished no rigorous proof.
   
2. The substance and scope of legislation cannot be determined later by regulations
   
   A scheme whose scope is left to regulations yet to be made is incomprehensible, amounts to an impermissible delegation of Parliament's power, and cannot lawfully be complied with. The same defect runs through the NHI Act, the implementation and interpretation of which depends extensively upon regulations yet to be drafted.
   
3. Medical practitioners & businesses have a constitutional right to choose their trade
   
   The right to freely choose one's trade, occupation or profession protects practitioners' decisions about where to practise, what to specialise in, and how to run their businesses. A scheme that overrides those choices is unconstitutional. Similarly, the NHI Act proposes extinguishing exactly these choices, for medical schemes, hospitals, doctors, and the patients who depend on them.

Litigation continues

Sakeliga's substantive constitutional challenge against the NHI Act remains in force, along with those of several other capable litigants, including Solidarity, who was the applicant in this Certificate of Need scheme matter. Per court order, the state may not proclaim or implement any provision of the NHI Act pending the Constitutional Court's rulings in the current public participation cases.

Yesterday's judgment further narrows the state's room to manoeuvre, both in those cases and in the substantive challenges that would follow.

The state has demonstrated its desire to have full and decisive control over healthcare in South Africa. If it cannot do it via the NHI, we expect it to continue trying other avenues, such as racialising supply chains and licensing, centrally controlling prices, or achieving NHI by piecemeal overregulation of medical schemes, hospitals, and practitioners.

Sakeliga will continue to resist the NHI Act and the state's broader attempts to gain control over healthcare.