State in new bid to control doctors’ careers
In a bid to resuscitate its ambitions for controlling where doctors work under National Health Insurance (NHI), the department of health will on Tuesday ask the high court to scrap a judgment handed down earlier this year declaring the National Health Act’s provisions for issuing health establishments with a certificate of need unconstitutional and invalid.
The certificate of need is a key aspect of the government’s plans to redistribute health services under NHI, as it will be required of health-care professionals and health facilities in order to be reimbursed for their services. The government has consistently positioned the certificate of need as a tool for improving access to health services in rural and underserviced urban communities.
But it has faced stiff opposition from doctors who say they should be free to live and work where they choose.
INVALID
In June, the high court upheld an application from trade union Solidarity, the SA Private Practitioners Forum, the Alliance of SA Independent Practitioners Associations and four individual practitioners to declare sections 36 to 40 of the National Health Act unconstitutional and invalid. Acting judge Thembi Bokako’s ruling not only scrapped the certificate of need but also had potentially far-reaching implications for the government’s plans to scale back the benefits covered by medical schemes when
NHI comes into play, because she said it would be unconstitutional to erode existing rights.
In an unusual turn of events, Solidarity’s application was not opposed by the respondents, which included health minister Joe Phaahla, health directorgeneral Sandile Buthelezi and President Cyril Ramaphosa.
Bokako said in her ruling that the respondents had “without a shadow of a doubt” been aware of the proceedings yet refused to participate in the matter.
Whether or not the department of health was aware of the matter will be front and centre in Tuesday’s court proceedings, when it is expected to argue that her judgment should be rescinded and set aside because it was sought and granted in its absence. It will also ask the court to allow it to submit its responding affidavit to Solidarity’s application.
Solidarity said in court papers that its attorneys sent emails to several people in the department and the office of the state attorney at every step of the way, including Buthelezi and state attorney Isaac Chowe, and each time it received “read” receipts, but no response.
The sheriff of the court attempted to serve the application at the department’s head office on two separate occasions, but each time was “inexplicably” told by the receptionist that no-one in the legal department was available to collect the application, it said.
“The .. attorneys made every effort to bring the application and hearing date to the department and state attorney’s attention. A litigant seeking to exercise its right against the state cannot be expected to do more.
“Its ability to sue the state cannot be hampered by the fact that the department’s legal department, which is one of the largest government departments in the country, has not one person willing to answer the receptionist’s telephone call on both service attempts,” said Solidarity in its court papers.
In his founding affidavit, Buthelezi said court documents recording the sheriff’s efforts to serve the application papers on the department showed only one attempt to do so. Emails were not an acceptable means of serving papers, in terms of the uniform rules of court, and neither he nor the health minister had received Solidarity’s application via email, he said.
Bokako’s ruling has yet to be confirmed by the Constitutional Court, which has asked both parties to submit written argument on whether it is competent for the high court to rescind its order and whether it is in the interest of justice for the Constitutional Court to grant the department’s stay application, in which it would be allowed to present the issues it would have raised in the high court had it been part of its proceedings.