Solidarity launches legal process on “certificate of need”

Movement says proposed provisions are extremely worrying and are obviously unconstitutional

Solidarity launches legal process on “certificate of need”

30 August 2021

Solidarity today in a legal message warned the President not to enact sections 36 to 40 of the National Health Act. These sections make provision for the introduction of a “certificate of need” in terms of which healthcare practitioners will have to apply to the state for a decision on where they may practise.

According to Solidarity, the provisions of these sections, as well as any resultant regulations, are unconstitutional and unlawfully encroach upon the rights of healthcare practitioners.

“The proposed provisions are extremely worrying and are obviously unconstitutional on various grounds. Instead of broadening access to health care, this scheme will increase distrust between practitioners and the state to the detriment of all South African citizens,” explained Henru Krüger, head of the Medical Guild at Solidarity. “We believe the provisions are irrational and without any logical link to the alleged objectives. A certificate of need will also seriously encroach upon the rights of our medical staff to exercise their profession according to their own discretion. Our health personnel are also citizens and also have rights. They are not merely assets of the state that may be allocated according to the government’s preferences.”

Solidarity also argues that the proposed scheme boils down to expropriation of medical personnel’s property at the cost of both the practitioners and those who currently are using their services.

“It is inconceivable that the government, owing to its inability to maintain its own institutions, now wishes to simply take over also the facilities and staff of the private sector,” Krüger said. “Furthermore, it means that anyone currently using these services will be deprived of their own vested access to healthcare. Instead of widening access to healthcare, these provisions simply are going to make us an even sicker country.”

Solidarity also announced its willingness to take this matter further and believes this is going to become a watershed case in litigation concerning the proposed National Health Insurance (NHI) and the accompanying looting of tax money.

“The objective of these provisions clearly is to pave the way for the NHI and for further looting of tax money. The government wishes to move to a system where all healthcare practitioners will become servants of the state. We cannot allow this. There is no justification for this restriction of their constitutional rights and we are ready to challenge it in court,” Krüger concluded.

To read the full letter of demand to the President, click here.

Issued by Henru Krüger, Sector head: Medical, Solidarity, 30 August 2021