A high court has ordered the head of health to give private institutions the go-ahead to train nurses.
MUCH NEEDED A high court has ordered the head of health to give private institutions the go-ahead to train nurses.
Image: Emile Bosch

The KwaZulu-Natal health head has been directed to give its prerequisite authority, within 10 days, to private health groups that want to train more than 200 nurses in the province to counter a threatened shortage of skills.

Pietermaritzburg high court judge Rishi Seegobin described the case before him as one of “utmost public importance”.

He said nurses were front-line workers, everyday heroes who stood between life and death.

“But, as this application shows, their importance appears to be lost on the authorities in charge of public health in this province.”

Seegobin labelled the department’s failure to provide the “letters of support”, which would have enabled training of nurses at private institutions and their employment at private hospitals, as deeply concerning — and limiting the public’s right to access to healthcare services.

Hasa has demonstrated quite adequately in my view that there is a need for nurses in private healthcare institutions in KZN. Such an assessment is based solely on logic and demographics and requires no scientific or other expertise.

Judge Rishi Seegobin

The Hospital Association of SA (Hasa) — a voluntary association of private hospital groups, including Life Healthcare and Netcare — approached the court with an urgent application in October last year for an order reviewing a refusal by the HOD to provide the letters of support for it to make an application to the SA Nursing Council for accreditation to train 230 nurses at its own institutions.

Hasa said the department had said there was a three-year moratorium on nursing training because there was a “surfeit” of nurses in the province who needed jobs and who should be employed in private hospitals.

Hasa said this was not true. The Covid-19 pandemic had put an incredible strain on the profession, many nurses had died and research showed that almost half of SA’s nurses were set to retire in 15 years.

The HOD and the MEC opposed the urgent application. It was finally heard in February this year.

Two issues had to be decided by judge Seegobin.

One was the technical defence raised by the HOD that the application, in terms of the Promotion to Access of Justice Act (Paja) was out of time and should be dismissed on this ground alone.

The other was whether Hasa was entitled to the review. Judge Seegobin, in his ruling, explained that in terms of regulations, the relevant provincial HOD had to issue “letters of support” to any application to the nursing council for accreditation to train nurses.

This was to prevent “congestion” of trainees in public health establishments and to ensure the public healthcare system was not burdened with an oversupply of healthcare personnel, or that nurses would be trained but have no jobs.

Hasa’s application was turned down in May 2019.

It then engaged in lengthy negotiations with the department culminating in a final letter of demand sent in September last year to avoid litigation.

Judge Seegobin said Hasa’s lawyers had pointed out that the department had still not provided evidence of the so-called surfeit of nurses, and that Hasa had been unable to train any new nurses since 2019, which was “chronically compromising access to health care”.

“It is an untenable situation with reference to your constitutional obligations to facilitate access to healthcare services and the prevailing Covid-19 pandemic,” the letter stated.

Judge Seegobin said: “Needless to say there was no response … it was left with no option but to institute court action.”

He said the preliminary affidavit filed by the HOD “took the matter nowhere”.

“It amounts to nothing more than a diatribe of complaints against Hasa for creating urgency where none existed … in the supplementary affidavit the HOD continues to assert that there is a surfeit of nurses but once again fails to put up any evidence.”

The HOD claimed that in October last year a decision had been taken to allocate 100 training placements to Hasa.

The judge said Hasa had said this was just a “knee jerk reaction to the litigation”, an assertion he agreed with.

Instead of addressing the “public interest issues”, the department had engaged in a finger pointing exercise that served no purpose whatsoever.

“It knew all along the letters of support were applied for 230 placements … 100 falls woefully short of Hasa’s requirements.”

He said Hasa had assured that the training would be done at its own cost and the graduates would be placed at its own institutions, so there would be no strain on government resources.

“It is deeply concerning that instead of owning up to its mistakes and taking responsibility for its failure to address the critical issues raised by Hasa over such a long period of time, it chooses to sustain this rather reprehensible conduct by pegging its case on technical defences that have no merit whatsoever.

“Hasa has conducted itself most appropriately throughout, regrettably the same cannot be said of the HOD and the department.

“It is clear the department is behaving unreasonably and limiting the public’s right to access to healthcare services. Hasa has demonstrated quite adequately in my view that there is a need for nurses in private healthcare institutions in KZN. Such an assessment is based solely on logic and demographics and requires no scientific or other expertise.”

He granted condonation “in the interests of justice” to Hasa for overshooting the 180-day deadline imposed by Paja, set aside the HOD’s refusal to issue the letters of support and ordered that they be issued within 10 days.

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