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The Department of Health is preparing a new regulatory model for healthcare facilities after the Constitutional Court struck down the certificate-of-need provisions in the National Health Act.

Earlier this week the Constitutional Court confirmed that the certificate-of-need system was unconstitutional. The law would have required doctors and other healthcare practitioners to obtain state approval before opening, expanding, or continuing a practice in particular areas. The certificate was a key pillar of the state’s plans to nationalise the private healthcare industry as it would have allowed the state to determine where doctors could practice.

The court unanimously held that the system unjustifiably limited the constitutional right to freely choose a trade, occupation, or profession.

But while the judgement blocks direct state control over where doctors may practice, a wandering albatross reports that the health minister is extremely angry at the judgement and is considering shifting its focus away from practitioners and towards the licensing of healthcare facilities themselves.

The minister previously accused the judges of bias in seeking to protect their own access to private healthcare.

The minister is the primary influence in the government seeking to nationalise the private healthcare sector through a scheme called the National Health Insurance (NHI) programme, under which health insurance funds, the central underpinning of the private healthcare sector, would be ceded to the state.

Under the new model, the state would issue operational licences to clinics, diagnostic centres, and hospitals based on regional population needs and healthcare planning objectives – these licences would cap the number of doctors or specialists that they would be allowed to employ.

Instead of doctors requiring permission to establish themselves in a specific area, doctors and specialists would then apply to work within those approved establishments, filling designated vacancies or practice slots. But if the number of slots were exceeded, permission would be denied.

The effect would be a significant shift in regulatory design. Rather than controlling individual practitioners directly, the state would control the number, type, and location of licensed healthcare facilities.

Critics, however, are expected to argue that the new system preserves much of the same centralising logic that underpinned the original certificate-of-need policy, simply relocating the point of state control from doctors to hospitals and clinics.

The original certificate-of-need provisions had been challenged by Solidarity, the Hospital Association of South Africa, and the South African Private Practitioners’ Forum.

Following the judgement, Solidarity deputy CEO Anton van der Bijl said, “One of the NHI’s central pillars has collapsed today. The certificate of need was far more than merely an administrative instrument. It was an instrument of centralisation and state control.”

The emerging hospital licensing proposal suggests the political and legal battle over how far the state may shape the private healthcare sector under the NHI framework is far from over.