Mungo Soggot
The government has reached the end of the road in a marathon legal effort to block a group of doctors in the Northern Province from opening a private hospital in Tzaneen.
The judgement sets a precedent for what is likely to be a battle between the medical profession and the government. One of the state’s fears has been that private hospitals can undermine public hospitals by attracting wealthier patients who subsidise the indigent and competent staff.
The Supreme Court of Appeal has denied the state’s petition to hear an appeal against a ruling by the Pretoria High Court giving the hospital the go-ahead. The Pretoria High Court denied the state’s application for leave to appeal in March, leaving a petition to Bloemfontein as its final option.
In addition to reversing the Northern Province’s rejection of the private hospital, the Pretoria High Court’s Judge Kees van Dijkhorst criticised the government for its “dishonest” handling of the case, accusing it of misleading the court.
It emerged during the trial that Northern Province officials went through the motions of following due process but in fact rejected the hospital application without reading it after deciding in principle against private hospitals.
The judge said officials had given the impression during the trial that they had read the application, adding “the case took a bizarre turn, however, when … [acting Director General of health] Victor Buthelezi stated that neither he nor his evaluation committee had seen the full application”.
The court heard the government had drawn up various policies against having private hospitals, including “private-for-profit hospitals in any form will not be allowed to develop parallel to the public hospitals. Any facility which in the opinion of the department will undermine the capacity of the public sector to deliver services [and thus decrease access for the majority] will not be considered.”
Judge Van Dijkhorst rejected the state’s argument that because there is disproportionate spending on private and public health care there should be no more private facilities.
“Refusing those that can pay for private health care that right of access will not improve the lot of the poor,” he said.
The doctors, who drew up a petition of 10 000 to support their plan, want to start building their hospital next year, and will shortly submit applications for similar private hospitals in the Northern Province.
The battle has had racial undercurrents. The government last year accused the doctors of pandering to racist whites who did not want to be treated alongside blacks in the Letaba and Van Velden hospitals, the public facilities in the area. Health officials have now dropped the racial invective but have stuck to their contention that the private hospitals will undermine public ones.
The 1977 Health Act says the test for private hospital applications is that there must be a need for the hospital and it must be in the public interest.
Rejecting the state’s claim that the private hospitals would draw away those patients who subsidise public hospitals, the judge said: “The answer is that at Tzaneen they do not get admitted to public hospitals. They refuse to go and choose to go to Pietersburg and Gauteng instead.”
The court heard extensive evidence about the shabby state of the public hospitals, including rusty and broken operating equipment.
The government policy under fire says that until the public sector improves, private involvement will be limited to joint projects with the state essentially allowing doctors to treat private patients in state hospitals.
The court rejected the government’s solution of co-opting the private sector into partnership, saying it was clear “private doctors in Tzaneen will not be dragooned into such a partnership” which would mean “boarding a rotten boat”.