In an April 2025 judgment, the High Court ruled that private hospitals performing public functions cannot avoid the scrutiny of constitutional and administrative law standards, especially if the constitutional rights of patients may be affected.
The matter arose from a private hospital’s decision to terminate the practising privileges of an oncologist with specialised expertise in the operation of a unique and advanced cancer treatment machine at the hospital, the only machine of its kind in Sub-Saharan Africa. The termination decision followed alleged racist, homophobic, and sexist remarks by the oncologist for which he was found guilty of misconduct during a disciplinary hearing, but his practising privileges were not immediately revoked. Instead, the implementation of the termination decision was delayed for several months.
A group of cancer patients applied to court to challenge the termination decision as being irrational and unlawful, primarily because it deprived them of access to essential medical care. The court was required to determine whether the termination decision constituted administrative action.
The court highlighted that although the relationship between the private hospital and the oncologist was contractual, the nature and consequences of the termination decision were such that the patients’ constitutional rights, particularly the right to access healthcare, would be directly affected. On that basis, the private hospital was performing a public function when it took the termination decision. Accordingly, the termination decision amounted to administrative action, even though the private hospital was a private entity acting in terms of a contractual relationship.
Having established that the termination decision was subject to constitutional and administrative law, the court ruled that the decision was unlawful and invalid because:
- the private hospital failed to follow its own policies, which required a process of rehabilitation for medical practitioners found guilty of unacceptable conduct, except in cases of immediate danger for patients or serious offences warranting instant suspension;
- in this case, the private hospital did not suspend the oncologist immediately, which indicates that the situation was not so grave as to bypass the rehabilitation process; and
- accordingly, the termination decision was arbitrary, disproportionate, and not rationally connected to the purpose of the private hospital’s policies.
The court highlighted further that the patients were entitled to enforce the contract between the private hospital and the oncologist, despite the patients not being parties to that contract, because the contract was not an ordinary commercial one but rather a contract that implicated the patients’ constitutional rights.
The court declared the termination decision unlawful and invalid, based on it being inconsistent with the Constitution and the private hospital’s policies, and set it aside for those reasons.
The judgment illustrates two important principles regarding the application of constitutional and administrative law standards:
- Private entities can perform public functions that are subject to constitutional and administrative law, especially when their decisions have significant consequences for the public.
- An agreement that affects the constitutional rights of third parties may be subject to enforcement by such third parties, even though they are not parties to the contract.