Friday 12 July

Health Professions Council of South Africa

The last day of the second week of public hearings for the Health Market Inquiry began with submissions and extensive questioning of the Health Professions Council of South Africa (HPCSA).

The HPCSA, which comprises over  30 health professions and 12 Professional Boards, began the day by detailing its scope and purpose. Though these Professional Boards generally enjoy autonomy with regard to the regulation of their professions, the Health Professions Act delegates the HPCSA with general overarching powers and obligations to “assist in the promotion of the health of the South African population” and “serve and protect the public in matters involving the rendering of health services by health professionals”. This was affirmed in the HPCSA’s submission in which the President noted “We must guide professions. We exist for the public: not the other way around.”

The HPCSA delegation was asked by Chief Justice Ngcobo if there was a reason that they had failed to make written submissions to the Panel to which the HPCSA responded that this was due to a lack of time. This is particularly disappointing given that the HCPSA is mandated to “be transparent and accountable to the public in achieving its objectives” . The HPCSA is an important stakeholder in the health system in South Africa.
Given the failure to supply a written submission, the HPCSA was put through intensive questioning by all five panellists of the Health Inquiry. The starting point of the HPCSA’s submission was an acknowledgment of how the inequitable healthcare system complicates its mandate. Because the HPCSA has a mandate in both the public and private sectors it matters, it submitted, “that in the private sector there are more health professionals than in the whole public sector”.

Ethical Tariffs

The most significant issue tackled by the HPCSA was the regulatory gap which exists with regard to ethical tariffs in South Africa. These ethical tariffs would allow patients to know when they are being overcharged for certain procedure and consultations and have recourse to the HPCSA if they had complaints about overcharging. Surveys show that many people believe that they are currently being overcharged.

The HPCSA decried the fact that as a result of a combination of a Competition Commission ruling (which found collusion in the setting of prices) and a High Court judgment (which struck down an attempt to regulate prices on procedural grounds) that “health has been commoditised [so] we cannot do our job and treat health as a right”. The Panel seemed sceptical of the HPCSA’s reliance on this excuse questioning “why I it taking so long for the HPCSA to review the ethical tariffs”. The process, in regard of which SECTION27 made detailed submissions in 2013, began as early as 2012. The HPCSA concluded that “we have heard that Department of Health wants to wait until the completion of the Health Market Inquiry process to ‘do it properly’”. Whatever the reasons for the delay, patients are currently left without any guidance about whether they are being overcharged by health professionals despite the HPCSA having a statutory duty to fill this void. When pushed, the President of the HPCSA suggested that patients themselves simply ask about prices “who of us goes to a restaurant and eats first and asks about the price after?”, he asked. This is a surprising submission in light of the continuous thread through the first two week of submissions in which health professionals themselves have frequently found that patients know little about their rights and how little bargaining power they have when it comes to the provision of healthcare.

The Panel also incisively questioned whether healthcare providers and medical schemes were merely taking advantage of the absence of a tariff structure to make more money “I wonder what degree to which the Commission’s ruling has been used as an excuse by private companies?” Professor Sharon Fonn asked.

The state of the HPCSA as a regulator 

The Minister of Health recently convened a Ministerial Task Team (MTT) to conduct an investigation into the HPCSA due to an increased number of complaints about the HPCSA’s dysfunctionality. Recommendations from the MTT confirm that the HPCSA “is in a state of multisystem organisational dysfunction” and reveals “irregularities” and “maladministration”. The Chief Justice inquired as to the “status” of the Department’s report which was concluded in 2015. Contrary to its statements in the media earlier this year, the HPCSA confirmed that it had been reporting to the Department on its progress in implementing the MTT’s recommendations and that “all the issues are being looked into”. Most optimistically, the HPCSA reports that it is “doing a total review about the way it deals with complaints” with the possible assistance of a retired judge.
Another question that was put to the HPCSA was about whether the HPCSA had “taken initiative” to “create synergies” between health professionals in the private and public sectors to alleviate inequality. Despite previously speaking strongly to the inequity between these two sectors, the HPCSA confirmed that it had not taken any steps to eliminate it. In response to a question posed by the Panel, the HPCSA also admitted that it “had not done enough” and that “we need to become more visible in the protection of health professionals”. 

Relationship with the Council for Medical Schemes

Medical schemes compliance with the law has been in the spotlight throughout the Inquiry hearings thus far. Medical schemes are regulated by the Medical Schemes Act which is governed by the Council for Medical Schemes (CMS). It was not surprising then that the Panel questioned the HPCSA about its relationship with the CMS and Medical Schemes. The President of the HPCSA emphatically condemned the conduct of medical schemes saying that “the ‘new tyrant on the block’ called medical aids causes [issues] for practitioners” by “interfere[ing] with professional management of patients”. Worryingly, the HPCSA also indicated that it had tried to contact the CMS but that it had received “no response or cooperation.”

Other issues

When questioned about the common challenge faced by foreign-qualified doctors in acquiring registration in South Africa, the HPCSA responded emphatically that the problem was with “non-complying applications” despite clear instructions and requirements on its website about applying for registration. The evidence leader of the Health Inquiry Panel suggested in response that given the need for doctors in South Africa the process of registration of foreign doctors should be “expedited”.

The HPCSA also made general submissions on the “commodification” of health services which included submissions on advertising, technology and and the hiring of health professionals by private hospitals. Their position was most emphatic with regard to the controversial debate about the employment of health professionals “if we allow health professionals to be employed by private entities then it will turn a crisis into a disaster”. Overall, the HPCSA opposed the increased trend of corporatisation of health services, concluding “the stock market cannot determine how you treat your patients”

The South African Medical Device Industry Association

The South African Medical Device Industry Association (SAMED) cited a number of challenges faced by the medical device sector.  Chief amongst them was exchange rate fluctuations which impact profit margins as 75% of medical devices are imported and only 25% are manufactured in South Africa.  SAMED pressed home the point that manufacturing medical in South Africa is extremely expensive, as is importing them. Some suppliers have had to withdraw services from the public sector due to non-payment and have indeed gone out of business because of the fluctuations in cost.

The Panel probed SAMED about reports of corrupt behaviour amongst their members, which included collusion with hospitals in relation to rebates for devices and incorrect invoicing. SAMED assured the Panel that it had acted to root out such behaviour amongst its members, including by implementing a code of conduct in relation to rebates and by asking member to be transparent in their invoicing.

SAMED appealed to the Panel to consider recommending that medical devices be included in the list of Prescribed Minimum Benefits, which would allow doctors to broaden the scope of treatment available to patients.

SAMED also indicated that it wanted regulations in place to ensure safe, reliable devices regardless of price. The association said that it had made submissions to the Department of Health in this regard but await finalisation of a draft bill in Parliament. It was unclear whether this was related to the legislation establishing the South African Health Products Regulatory Authority, which will have responsibility for the safety, efficacy and quality of medical devices. The law has been passed by Parliament and the Authority will begin work in April 2017.

Dental Practitioners Association

The last group to make oral submissions to the Inquiry today was the Dental Practitioners Association (DPA), which reiterated the challenges raised by other professional organisations, including the sometimes coercive relationship between practitioners and funders. The DPA complained that schemes routinely set low tariffs for dental services, which are not appropriate and result in unavoidable co-payments.

The DPA also discussed information asymmetry, saying that the failure by funders to inform users of their benefits and the use of language that cannot be easily understood by users is deliberate.

The DPA raised concerns about the profit-making of medical scheme administrators. According to the DPA, the expenditure of administrative costs outsourced to third party administrators was 40% higher than the expenditure in self-administered schemes, suggesting that self administration facilitates cost saving.

The DPA also raised concerns about preferred provider networks, asserting that the protocols and rules imposed on providers in those networks influence how practitioners treat patients. They suggested that the further development of such networks will contribute to market concentration and make it hard for new players to enter the market.

The DPA criticised the government for allowing two systems of healthcare to develop in South Africa arguing that a failure of management has resulted in resources being tilted in favour of the private healthcare sector. Adding that the multiplicity of regulators creates a disconnect in regulation.

Concluding Comments: Some observations about the HMI public hearings this far

At the conclusion of the 2nd week of hearings there are some observable patterns emerging about the functioning of the private healthcare sector. Different stakeholders have presented their views about what is wrong within the private health sector, some have offered concrete suggestion while others have shifted responsibility onto others.
The Panel has impressed with its incisive questioning, its broad knowledge of the healthcare sector and its seemingly encyclopaedic knowledge of the nearly 70 extensive written submissions. The Health Inquiry is shaping up to have the potential to ensure the better protection of rights of patients in the private healthcare system. The public should continue to engage with and make submissions to the Health Inquiry to ensure that patient’s voices and rights remain at the centre of the entire process.



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