The Constitutional Court has indirectly dealt a heavy blow to the National Health Insurance (NHI) Act by declaring that the “certificate of need” provisions under the National Health Act are unconstitutional. Promulgated in 2003, the National Health Act contained provisions in section 36 to regulate where private sector doctors and medical service providers were permitted to operate and to what extent — the so-called certificate of need. The regulations empowering the offending section 36 of the act were long delayed, but when finally implemented several years ago, trade union Solidarity and several medical associations took the matter to the high court, arguing they were unconstitutional. The high court found the certificate of need to be unconstitutional in July 2024, and the Constitutional Court’s ruling has now ratified that finding, declaring that these odious constraints on doctors violate section 22 of the constitution, namely the right to choose one’s trade, occupation or profession freely. The certificate of need in the National Health Act has until now been a cornerstone of the government’s ambitions to implement the NHI, though the state has been somewhat contradictory on whether the NHI is contingent on the certificate of need being in place.After the high court ruling in July 2024, health minister Aaron Motsoaledi was quoted as saying: “It is purely mischief to assert a connection ... and is part of a deliberate campaign to discredit the NHI.” By contrast, in the papers filed by the state in this Constitutional Court case the state argued that “the certificate of need is a central pillar in the implementation of the NHI”. Nonetheless, besides the debilitating provisions of the certificate of need outlined above, another provision would have compelled doctors to share their resources with the department of health to treat public sector patients should the department’s director-general deem this necessary. In other words, the state could force the private sector to make up for its own failings. Given the substantial overreach, that the apex court has made this ruling is no surprise. While the certificate of need provisions were contained in the National Health Act and not the NHI Act, this ruling has important implications for the NHI, since for the NHI to operate as its ANC architects envisaged it, it required control over doctors. The certificate of need was designed to dictate where doctors were permitted to operate and what services they could deliver, while section 33 of the NHI Act would compel doctors to contract their services to the state via the yet-to-be-established NHI Fund. While the certificate of need provisions were contained in the National Health Act and not the NHI Act, this ruling has important implications for the NHI, since for the NHI to operate as its ANC architects envisaged it, it required control over doctors. The vast majority of private sector care delivered today is funded through medical schemes, so the ability for private sector providers to remain contracted to medical schemes is vital in securing their revenue and hence their survival (“Private healthcare faces a bigger risk than regulation — demographics“, May 22). The NHI will prevent doctors from being able to contract with medical schemes, compelling them instead to contract with the monopoly NHI Fund via section 33 of the NHI Act. Though via a slightly different mechanism, section 33 of the NHI Act will also restrict doctors’ rights to choose their trade, occupation or profession freely, as it will compel doctors to become servants of the state. This is how the ruling on the certificate of need under the National Health Act has major relevance to the NHI Act; if the Constitutional Court is consistent, it should also find section 33 of the NHI Act unconstitutional. Furthermore, there is no indication yet as to how much medical service providers will be paid by the NHI Fund, as compared with what medical schemes now pay them. The NHI Fund will unilaterally determine what it will pay medical service providers, as per the health care benefits pricing committee to be established under section 26 of the NHI Act. Read alongside section 33, which prevents medical schemes from insuring services covered under the NHI, section 26 places the NHI Fund in a position to exclusively determine what doctors and medical service providers will earn. This could also be seen as a limitation of the right to choose one’s trade, occupation or profession freely. Further consideration could also be given to section 39 of the NHI Act — accreditation of medical service providers. This will allow the NHI Fund to dictate the “number and mix” of healthcare providers accredited to the NHI Fund, which may include public and private sector providers. There is no obligation on the NHI Fund to accredit all service providers in a region, and where only a portion of providers in a particular region are accredited, any unaccredited service providers will still remain subject to the exclusionary provisions of section 33, thus preventing these service providers from delivering their services to medical schemes. This would leave such unaccredited service providers with no ability to earn an income in their chosen profession! Last, when it comes to budget time, the NHI Fund will do whatever any tax-funded public health system does — throttle supply (read: start rationing care). To achieve this it will reduce the number of accredited service providers. The inevitable result will be lengthy waiting times for treatment and substandard care. The deprivation of constitutionally protected rights by the NHI Act is extensive, and given a thorough reading of the Constitutional Court’s ruling on the certificate of need, it is a difficult stretch to believe that a similar ruling will not be made if or when the NHI Act comes before the apex court. • Settas chairs the Free Market Foundation’s health policy unit.