If it were wise, the government would be experiencing a sense of relief at the Constitutional Court judgment that sections 36-40 of the National Health Act 61 of 2003 (NHI) are inconsistent with the Constitution.
These sections relate to the controversial “certificate of need” proposed in the legislation. This would prevent individual practitioners and corporate health-care providers from establishing services and facilities where they choose, unless given permission by the state. The condition would infringe their constitutional rights.
The judgment gives the state an escape route, as well as an opportunity to rethink the NHI as a whole. It has always seemed far too ambitious. It threatens to destroy a thriving private health-care system, admittedly itself not without its flaws, with no guarantee that anything functional will replace it.
The record of the state in health care is dismal. Examples of incompetence, corruption scandals and general physical collapse in hospitals are shocking, but so routine that they no longer make the news.
Sensibly, there have been NHI pilot schemes that were meant to test the weight that a bridge to a new health system could carry. But even the government admits that these schemes had mixed success, with the failures fundamental. Infrastructure remained inadequate, with many pilot clinics and hospitals experiencing overcrowding, poor maintenance, medicine shortages and equipment failures.
While the NHI is a national project, it is often forgotten that health-care delivery, like basic education and roads, is a provincial competency. Where upgrades were attempted, they often failed because of the incompetence of provincial public works departments and inefficient and corrupt procurement.
It is not as if citizens who subscribe to medical aid schemes are not contributing to the state health system. They pay taxes, with increasingly fewer opportunities to claim their contributions as tax-deductible. This means that people who can get access to private health are subsidising those who cannot, as well as relieving the potential burden on the state system. This “double taxation” has also long been evident in education and safety & security.
Politicians everywhere make unrealistic promises, but it seems to be in the DNA of the ANC to always attempt to do everything. A wish list may be useful in setting targets, but policy, like military strategy, is always about choices. Inevitably, these choices present an option of difficulties.
The private health sector, powerfully motivated by the instinct of self-preservation, has come up with various hybrid models that aim to at least satisfy some of the government’s aspirations as expressed in the NHI. Critics have argued that the legislation seems to have ignored the many alternative proposals.
One example of a public-private partnership that already works is the Wits University Donald Gordon Medical Centre in Parktown. It is the first private academic hospital in South Africa, but its training is integrated with public teaching hospitals. Private health-care income subsidises academic capacity that benefits the wider public system. Public-sector doctors and private specialists are able to work together.
The ConCourt judgment should prompt the government to take another look.
