This week’s Constitutional Court judgment striking down the health department’s plans for controlling where doctors work is a sharp reminder that noble aspirations are no substitute for good law. In a unanimous ruling, the court found the “certificate of need” provisions in sections 36 to 40 of the National Health Act are irrational, unconstitutional and invalid. Under the proposed scheme, the health department would have required private healthcare providers, such as doctors and hospitals, to obtain a certificate of need to operate in a specific geographic area. It argued that controlling where private sector doctors and hospitals conduct their businesses would result in a more equitable distribution of health services.But the court didn’t agree. While it expressed support for the health department’s desire to tackle South Africa’s deeply skewed allocation of healthcare resources, which sees private healthcare facilities concentrated in urban and wealthy areas, it found the certificate of need provisions are not a rational way to achieve its goal. It upheld a 2024 Pretoria high court ruling that concluded it was irrational to assume that withholding the granting of a certificate of need in one geographic area would result in the establishment of facilities in another. The court also found that the certificate of need provisions fail to give any consideration to the rights and interests of healthcare providers and thus impose an unjustifiable limit on their right to choose a trade, occupation or profession.Despite the health department’s protestations to the contrary, the ruling is a clear setback for its plans to implement National Health Insurance (NHI), its blueprint for universal health coverage. While the NHI Act does not make specific reference to the certificate of need, the minister said in a sworn affidavit submitted to the Constitutional Court that the scheme would enable the government to steer the distribution of existing and future health resources to achieve universal access. In his exact words: “The certificate of need provisions in sections 36 to 40 of the National Health Act are relevant to and necessary for the implementation of the NHI.” The judgment also has broader implications for the multiple legal challenges facing the NHI Act, which has been criticised by numerous litigants for not containing sufficient detail about how it will be financed, which benefits it will cover, or how healthcare providers will be expected to contract with a government-controlled NHI Fund. The stock response from the health department has been that these details will be provided in regulations.This week’s Constitutional Court judgment suggests that argument is unlikely to hold up. The apex court has emphatically reinforced the principle that regulations cannot be used to interpret legislation.It found the certificate of need provisions are unacceptably vague and that leaving the details of which professions, health establishments and services would be affected to subsequent regulations would have given the minister unconstrained power. Unlike proposed legislation, which is subject to extensive public input and parliamentary deliberation, regulations can be implemented by ministers at great speed and with little impediment.The health department has already signalled that it remains intent on instituting some form of certificate of need and is heading back to the drawing board to craft a new scheme. It would do well to remember that doctors are people with families, friends and communities: persuading them to work in the places where they are most needed will require a lot less stick and a lot more carrot.