Health Act does not adhere to the rule of law

Government’s National Health Insurance (NHI) proposals have dominated the headlines over the past months. The Free Market Foundation’s Health Policy Unit too, has focussed on that misdirected and flawed policy. But the NHI is not the only problem in our national health regime.

The National Health Act (61 of 2003) is also holding South Africa back in terms of medical and healthcare development.

The Good Law Project’s Principles of Good Law report, published in 2015, contained an introduction to the meta-legal concept of ‘the rule of law’. In brief, the rule of law means that objectively-ascertainable principles of law govern society, rather than the arbitrary discretion or whims of politicians and bureaucrats. This is why ‘the rule of law’ is distinguished from ‘the rule of man’, which finds its expression in dictatorship or absolute monarchy.

The tenets of the rule of law were adopted into South Africa’s legal regime in terms of section 1(c) of the Constitution, which states that the State is founded on the “supremacy of the constitution and the rule of law.”

Despite this, the National Health Act is based on questionable premises, which is clearly evident from its long title and preamble. Rather than focussing on the provision of quality healthcare, the Act takes a bureaucratic, ideological approach, seeking to create a “uniform health system” and unite the elements of the “national health system” – which encompasses both public and private infrastructure. It is an exercise in centralisation, more than anything else. And it is these provisions in the Act which pursue this problematic goal, that contravene the rule of law.

Section 36 of the Act provides that no person may establish a healthcare agency, such as a clinic or hospital, without having a ‘certificate of need’ issued to them by the Director-General of Health (DG). These certificates are also required if an existing establishment wishes to increase the number of beds in a hospital (increasing its capacity) or acquire new medical technology (increasing the quality of treatment).

These certificates are a particularly perverse instrument in this post-Cold War era, especially for an African developmental state.

While the Act does not define what a certificate of need is, in section 36(3) it outlines what the DG must take into account before a certificate can be issued. Among other things, it says that there must be a “consistent” development of health services in terms of “national planning”; that the inequities of the past must be corrected (in the context of whether or not someone may build a new hospital); there must be an “appropriate mix” of public and private health services; that it must be ensured that “ownership of facilities” are not for “perverse” reasons; and whether or not the private hospital is for-profit.

These are only some of the things the DG must bear in mind before issuing a certificate, and an independent article can be dedicated to the patent ridiculousness of each.

The unifying characteristic of all of these ‘factors’, however, is that they are wholly irrelevant to expanding the quantity, and quality, of healthcare to ordinary South Africans. In fact, many of the factors appear to be inspired by a dogmatic adherence to an ideology currently pursued by the ruling party rather than for ensuring the safety and comfort of patients.                                                   

These factors violate the rule of law in that they do not have general application and are arbitrary. Going by the wording of the Act – the DG might reject an application for a certificate from a hospital in an affluent area to increase the number of beds because it is a for-profit establishment and the township hospital nearby has not been “developing consistently” with the wealthier hospital.

The vagueness of some of these blatant ideological factors also contributes to their inconsistency with the rule of law. For example, what does an “appropriate mix” of private and public services mean? The Act provides no guidance or criteria on how to determine an “appropriate mix”. What is and what is not appropriate is entirely within the arbitrary discretion of the DG and the Department of Health.

More worrying is the fact that the DG may withdraw a certificate if the establishment “obstructs the State in fulfilling its obligations” to provide healthcare to South Africans. How is it conceivable that a private clinic can ‘obstruct’ the government in its public healthcare duties? The vagueness of this provision opens it up to potential abuse.

The key provisions of the National Health Act violate the most basic tenets of the rule of law. The Act should be reconsidered in light of the fact that there is no rational relationship between these provisions and the State’s supposed constitutional obligation to provide healthcare, and that, in all likelihood, they violate the right of every South African to access healthcare.

Author Martin van Staden is a law student at the University of Pretoria and the Academic Programmes Director of Students for Liberty in Southern Africa. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation. 

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