Guidance on obtaining consent of patients

Council and the Professional Boards under its ambit has noted that the guideline provided to practitioners by Council in fulfilments of its mandate in terms of section 15A(h) of the Health Professions Act in August 2017 has caused confusion to practitioners in terms of the requirement of obtaining consent from patient to release their treatment records to the medical schemes. Council views the conduct by Medical schemes of using the HPCSA as a tool to threaten, coerce and harass practitioners into signing settlement agreements as unlawful.

Through this revised guide, Council wishes to clarify the issue of obtaining consent from patients as follows:

Access by a medical scheme to the member’s clinical records held by a practitioner

In terms of Regulation 15J(2) of the Medical Schemes Act Regulations, a medical scheme is entitled to access any treatment record held by a managed health care organization or health care provider and other information pertaining to the diagnosis, treatment and health status of the beneficiary in terms of a contract entered into pursuant to regulation 15A, but such information may not be disclosed to any other person without the express consent of the beneficiary. This entitlement is subject to the prescribed requirements for disclosure of confidential information in terms of section 14 and 15 of the National Health Act 61 of 2003 and Ethical Rules of Conduct for Practitioners registered under the Health Professions Act, 1974 as published under Government Notice R717 in Government Gazette 29079 of 4 August 2006. Practitioners are therefore required by law to disclose or release the treatment records of their patients to the medical scheme without having to obtain the written consent of their patients.

Prosecution of practitioners involved in fraudulent activities

In terms of Section 66(2) of the Medical Schemes Act, a practitioner registered under the Health Professions Act may not be prosecuted under the Medical Schemes Act as an act of unprofessional conduct by practitioners registered with the HPCSA is punishable under the Health Professions Act. Section 16 of the Medical Schemes Act places an obligation for the Council for Medical Schemes to report cases of improper or disgraceful conduct (Unprofessional Conduct) to a medical scheme by practitioners registered with HPCSA to the HPCSA as the statutory body which has jurisdiction over practitioners registered under the Health Professions Act. Where an offence has been committed, the Council for Medical Schemes is obliged to refer such a matter to the National Prosecuting Authority. The medical schemes cannot discipline or prosecute health practitioners for unprofessional conduct but may report practitioners to HPCSA for unprofessional conduct or report any offence to the South African Police Services.

Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 requires that anyone in position of authority or an entity (medical schemes, HPCSA, etc.) that suspects or has knowledge that a practitioner has been involved in a fraudulent activity that involves an amount of R100 000 or more to report such knowledge or suspicion to the South African Police Services. Failure of such a person or entity to comply with this provision of law constitutes an offence under the Act mentioned above.

Practitioners are advised that those found guilty of unprofessional conduct involving fraud amounting to R100 000 or more will not only be subjected to penalties imposed in terms of Section 41 of the Health Professions Act but Council will also report such practitioners to SAPS in terms of the Prevention and Combating of Corrupt Activities Act.

Recovery of benefits paid bona fide to a practitioner who was not entitled to receive such benefits

Section 59(3) of the Medical Schemes Act empowers the medical scheme to recover any amount which has been paid bona fide to which a practitioner is not entitled to or any loss which has been sustained by the medical scheme through theft, fraud, negligence or any misconduct which comes to the notice of the medical scheme.

The question is: How does the medical scheme recover such an amount?
a. by deducting such amount from any benefit payable to the health practitioner. Council advises practitioners that the agreements they reach with the medical schemes should be as prescribed in terms of this section of the Medical Schemes Act.
Or
b. Through any other lawful arrangement made with a practitioner to reimburse the scheme.

Legal status of payment arrangements made between health practitioners and medical schemes

The payment arrangements between practitioners and the scheme are legally binding if they are lawful. An example of an unlawful agreement is one which is reached with a condition that the medical scheme will not report a practitioner to any organ of state, including the HPCSA on a matter that such an organ of state has jurisdiction over. Although Medical Schemes may exercise their choice in terms of reporting unprofessional conduct to the HPCSA, they have a duty in terms of common law and section 66 of the Medical Schemes Act to report practitioners to the HPCSA.

Withholding of claims due to practitioners by medical schemes

In terms of Section 59(2) of the Medical Schemes Act, the scheme should pay a claim either to the member or practitioner within 30 days of receiving the claim. According to Regulation 6 of the Medical Schemes Act Regulations, if a medical scheme is of the opinion that an account, statement or claim is erroneous or unacceptable for payment, it must inform both the member and the relevant health care provider within 30 days after receipt of such account, statement or claim that it is erroneous or unacceptable for payment and state the reasons for such an opinion and the member or health practitioner has sixty days to correct and resubmit such account or statement. Where the medical scheme has failed to either notify the member or health care provider within 30 days that an account/statement/claim is erroneous or unacceptable for payment, OR fails to provide an opportunity for correction and resubmission, the medical schemes bears the onus of proving that such account/statement/claim is, in fact, erroneous or unacceptable for payment when there is a dispute. Practitioners are advised to report medical schemes who unlawfully withhold claims due to them to the Council for Medical Schemes.

Conclusion

Council and the Professional Boards under its ambit do not condone any form of fraud and as a result, the investigation of complaints of alleged fraud by practitioners registered under the Act has been intensified to fulfil Council and the Professional Boards’ function of maintaining and enhancing the dignity of the relevant health professions and the integrity of the persons practicing such professions.