The controversial National Health Bill was approved by the National Assembly on Friday, despite vehement objections from opposition parties.
The Democratic Alliance, Inkatha Freedom Party, New National Party and African Christian Democratic Party all voted against the measure, mainly because of the certificate of need provisions, arguing these are unconstitutional.
Deputy Health Minister Renier Schoeman, a member of the NNP, also opposed the bill.
In terms of the legislation, health practitioners will have to obtain a certificate of need to provide health services, or to establish or operate a health establishment or agency, such as a clinic, hospital or surgery.
The certificate of need is granted to a person, and lapses when the individual dies or leaves the practice for whatever reason.
The Department of Health’s director general will issue certificates of need — valid for a maximum of 10 years — on the basis of a host of criteria.
The DA’s Tertius Delport said this ”strikes at the heart of the right of medical practitioners and organisations offering services in the medical field, to choose their profession freely”.
”The section does not set minimum standards or does not deal with required qualifications or any other matter that normally regulates a profession or occupation.
”No, it simply says that a medical practitioner will only be allowed to practise his or her profession if the director general judges there to be a need,” he said.
”It destroys the basic right of a person to offer his or her services wherever he or she chooses. It is an outrageous infringement upon a basic freedom to work enshrined in our Constitution.”
The DA appealed to President Thabo Mbeki not to assent to the legislation, but to follow the route set out in Section 79 of the Constitution to test the constitutionality of this section.
”Should the president assent, the DA shall have to pursue other constitutional avenues to test its constitutionality,” Delport said.
Dr Kobus Gous of the NNP also questioned the certificate of need provisions’ constitutionality. It was clear the certificate of need would affect the biggest corporate businesses, both private and public, to the individual practitioner, which would include nurses wanting to do voluntary home-based care, he said.
”The certificate of need is based on poorly defined criteria and could eventually lead to subjective [or] political decisions, which do not adequately respect the right of the individual.”
”It is clear that the certificate of need is arbitrary, subjective, destructive and anti-competitive.”
It would also be ”the grease on the slide of the brain drain”.
This was confirmed in no uncertain terms by young doctors as represented by the South African Registrars Association during public hearings on the bill, Gous said.
However, Health Minister Dr Manto Tshabalala-Msimang said the certificate of need was a ”rational planning tool designed to promote good organisation, efficiency and effectiveness, and prevent unnecessary duplication of health care facilities and services”.
”It will guide the establishment of health facilities and health services which best serve public needs,” she maintained.
”I need to stress that the certificate of need process not only protects the users, but it protects the providers as well.”
Multiple providers could not survive in a saturated market, and the certificate of need would ensure services were delivered according to need.
”The very great and disparate health needs in South Africa dictate that we cannot afford to permit an oversupply of resources in some areas at the expense of others,” Tshabalala-Msimang said.
The bill was approved in a division, and will now go to the National Council of Provinces for concurrence. — Sapa