The controversial Certificate of Need (CoN) draft regulations bear little relation to the empowering sections in their origin, the National Health Act of 2003, to the Health Market Inquiry (HMI) recommendations, or the existing legal frameworks – not least the Office of Health Services Compliance (OHSC) – and as such should be totally withdrawn and redrafted after proper consultation with all relevant health service and associated providers.

Making this call in a webinar presentation to the Institute of Health Risk Managers (IHRM) this morning, legal authority Elsabe Klinck (pictured) reminded her audience that the original objective of the CoN was to redistribute healthcare services through the control of “health establishments” and health agencies, their services and requirements such as prescribed technologies.

She noted, however, that although questions could be raised on the empowering sections from a constitutional perspective, the regulations as proposed do “very little” to address concerns on the impact of redistribution on both existing and new establishments.

Of particular concern was that many of the CoN draft regulations were directly drawn from the regulatory proposals of 1980 (R158) in which requirements for a certificate of need were first mooted. An obvious issue here was it being outdated. As Klinck showed, the legislation only applied to “all” private establishments which included “general establishments”, “private hospitals”, an “operating theatre unit in a private hospital”  and “maternity units”: “What about cath labs, day hospitals, procedure rooms in practices, or about pharmacies?”

Also problematic was no reference to other more modern services such as step-down facilities, rehabilitation centres and occupational and school health.

Elaborating on the implications of these shortcomings, Klinck alluded to potential problems facing health service providers with no control over their environment such as those in occupational and school health.

By definition a health establishment based in a bigger facility will require a CoN.  But how, for example, would an occupational health service be permitted if situated in a building where the ceiling was not at the specified 2,6m height? : “If our ceilings are not 2,6m, they might ask, are we rendering inferior services and not addressing the needs of the population?

“There is nothing wrong with ensuring standards and quality and ultimately getting a rational system, but the big question is the ‘how’,” said Klinck, indicating that the proposed regulations properly drafted, in fact, could be the answer.

“The CoN regulations should actually be good news for medical schemes. The ills identified by the HMI would be addressed. The risk of over-servicing could be prevented, inappropriate procedures could be greatly reduced as could concerns about health technology – a mechanism that could create a rational system.

“If the Department of Health listens to what people are saying on these issues they will republish the draft. The logical step is, let’s halt what we started – 1980 is not the best benchmark! Let’s do it properly and listen to what the HMI says, keeping in mind our vision with NHI and what’s going to get us closer to that vision.”