-
Beds inside of a healthcare facility.
The Constitutional Court has heard from Counsel on behalf of the Solidarity Trade Union and others that nothing in the National Health Act (NHA) constrains the Minister in deciding what health services might or might not be subject to a certificate of need.
A certificate of need is a regulatory document that requires those providing prescribed health services to get State approval in order to operate or provide health services.
This forms part of Sections 36 to 40 of the NHA, which is the subject of a constitutional challenge before the apex court.
Solidarity Trade Union and others are seeking confirmation of a declaration of invalidity against the said sections by the North Gauteng High Court in Pretoria, arguing that the provisions are irrational, arbitrary, and give broad discretionary power in the hands of two administrators without constraint.
Representing trade union Solidarity and others, Margaretha Engelbrecht SC says, “Nothing in the Health Act constrains the minister in deciding what health services might or might not be subject to a certificate of need. The respondents themselves point out in paragraph 110 of the answer in the high court at record page 474, that section 90 of the Health Act, which circumscribes the powers of the Minister to make regulations, doesn’t deal with the power to make regulations related to health services.”
“We say what the minister is given is an untrammeled lawmaking power to decide which health services will be subject to the scheme and which not and whatever the extent of those prescribed health services might be. Those to be rendered by individuals, what the respondents cannot say, as they did before the high court, is that the only persons who could conceivably be subject to the scheme are those seeking to establish, construct, modify or acquire a health establishment or agency,” explains Engelbrecht.
