Issuing the proclamation led to a situation that could discourage practitioners from providing essential services for fear of criminal sanction.
Doctors and healthcare providers are once again operating legally, after the Constitutional Court declared invalid a proclamation by the president bringing into effect sections of the National Health Care Act that regulates where doctors can operate.
Following the proclamation issued by President Jacob Zuma, doctors would have had to apply to the department of health for a “certificate of need”, or permission to work in an area, by April 1 2016. Failure to comply with the new law is punishable by a fine or five years imprisonment, or both.
Unfortunately, the Act was promulgated without the required regulations being in place, making it impossible for doctors to comply, and forcing President Jacob Zuma to apply to the Constitutional Court to declare the section invalid, as he could not withdraw the proclamation because the date of its commencement was long past.
Lawyers for Zuma and the health department told the court that the president had “acted in good faith when he determined a date for the statutory provisions to take effect, but was led astray by his advisors mistaken counsel”.
He said had he been aware of the correct position – namely that the necessary regulations were still pending – he would have selected a later date.
The court found that the issuing of the proclamation had led to an “untenable and unintended situation which could inhibit or discourage health care practitioners from providing essential services” for fear of criminal sanction.
It is a temporary reprieve for the sector. Health Minister Aaron Motsoaledi believes there is a need to address health inequalities between rural and urban areas.
The South African Dental Association and the Hospital Association of South Africa, who supported the president’s application, have mounted a campaign alongside groups like the South African Medical Association and the South African Private Practitioners Forum (SAPPF) to have the new requirements reviewed, arguing that it’s a blunt and coercive instrument with grave and unintended consequences.
SAPPF chief executive Dr Chris Archer said that the health department’s central problem is how to deal with the mismatch between the distribution of disease and health services.
He said the solution was not regulated distribution of medical practitioners, suggesting that “innovative public/ private partnerships that do not depend on the development of fixed capital intensive infrastructure” would be a more practical solution.