ConCourt declares key sections of National Health Act unconstitutional
The Constitutional Court has ruled that sections of the National Health Act dealing with the Certificate of Need are unconstitutional
The Constitutional Court has ruled that parts of the National Health Act are unconstitutional.
The law would have required state approval for healthcare providers to open, expand or relocate practices. Government argued the system would improve equal access to healthcare services, but critics, including Solidarity, said it gave the state excessive control over the health sector.
The matter has now been referred back to Parliament for reconsideration.
Justice Kate Savage, in a unanimous judgment, said the invalid sections are irrational and unjustifiably limit the constitutional right to choose a trade, occupation or profession freely, and have therefore been severed from the Act.
Solidarity challenges state control over healthcare practices
The court also heard trade union Solidarity’s separate challenge to provisions requiring healthcare providers to obtain Certificates of Need before opening, expanding or relocating practices.
"The certificate states that you can only practise as a health practitioner in a certain province or location if you have a Certificate of Need, which is issued by the government. We are saying this is overreach of the state, they are not entitled to centralise that function, and therefore we brought this matter to court,” said Anton van der Bijl from Solidarity.
Van der Bijl said the ruling is just the beginning of the battle.
"Our legal battle is based on two legs; the first was this centralisation of key practitioners and the second is the centralisation of funds through the NHI Act. We are busy with that as well and we await a court date for that act to be declared unconstitutional as well."
Court orders Health Minister and Parliament to pay legal costs
Monday's ruling confirmed an earlier North Gauteng High Court order declaring sections 36 to 40 of the National Health Act unconstitutional.
The Speaker of the National Assembly and the Health Minister have been ordered to pay the applicants’ legal costs, including the costs of two counsel.
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