Friday, April 12, 2013

The actual Interpretation of "Pay in Full" in terms of the Healthcare Schemes Act

By Dirk Markhen

In the recent case of the Board of Healthcare Funders of Southern Africa v Council For Medical Schemes 2011 JDR 1471 (GNP), the first and second applicants approached the judge by way of a demand to give out a declaratory order regarding the meaning of the phrase "pay in full" in regulation 8(1) of the General Regulations made pursuant for the Professional medical Schemes Act, 131 of 1998.

The applicants contended that the Courts required to determine three problems, that is: 1. The first applicant's entitlement to initiate actions for declaratory relief; 2. The interest and locus standi of the intervening respondents in opposing the relief looked for by the applicants; and 3. The concise explanation of the phrase "pay in full" in regulation 8(1) of the General Regulations that had been promulgated in terms of area 67 of the Act.

Regulation 8 has been in power since 1 January 2000. As reported by the appliers, the current problem begun on 11 November 2008 when the Appeal Board resolved two cases on appeal which were forwarded by the Appeal Committee with respect to section 50 of the Act. The Appeal Committee and the Appeal Board had, pursuant to those two judgements, considered the phrase "pay in full" in regulation 8 to signify that the medical scheme must make 100 % payment of a service providers' bill in respect of the costs of providing heath care treatment services for Prescribed Minimum Benefits without taking the policies of the health care scheme into consideration in working with any problems.

It had been the applicants' dispute that "pay in full" implies settlement in accordance with the guidelines of the Medical Scheme, while in accordance with the respondents, the judgements by the Appeal Board haven't been questioned up to now and presently professional medical aid schemes are bound to this power while having to pay for service providers' accounts completely.

The primary problem from the participants was that the first applicant had no immediate and substantial interest in the application since the judgment will not have an effect over it. Although the first applicant suggested it represented 75 licensed healthcare aid schemes and therefore had locus standi, a legal court identified this to not be. This was because of the reason that the first applicant saw suitable to have the second candidate, who's a registered professional medical aid scheme, combined. Moreover, only 15 licensed professional medical schemes, within the starting and supplementary founding affidavits, affirmed that the declaratory order needs to be found.

The Court held that had the 1st candidate been so confident that it defended all 75 medical aid schemes it wouldn't have been necessary to join the 2nd applicant or to acquire affidavits and signatures of 15 members of the 1st applicant. A Legal Court decided from this that the first candidate didn't in fact legally represent 75 members, but only the 15 members mentioned inside the documents.

The non-joinder of all of the medical schemes rendered the application fatally flawed as the Courts could not find that the first applicant, as a standard representative of the healthcare schemes, can be prejudicially impacted by a ruling, but discovered that its participants may all be prejudicially influenced and accordingly, all the participants should have jointly implemented the application for a declaratory order.

The Judge found that the primary applicant didn't have locus standi for the reasons:

1. The matter was one that may be considered a representative issue, but not all the medical schemes had been joined and it has not been launched as a representative topic because of the fact that the first candidate didn't have any authority to litigate on behalf of all 75 of its members;

2. In order to start action with respect to Section 38 of the Constitution, a litigant needs to demonstrate that a right enshrined in the Bill of Rights has been encroached upon along with satisfactory concern in the relief sought. The initial candidate did not explicitly aver such infringement and the Court found out that the First Complainant may not be directly affected by the verdict and didn't have a satisfactory concern in the relief sought.

For the purpose of the other candidate the judge held it could not be successful in the application on its own, as none of the alternative healthcare aid schemes or managers ended up being coupled.

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