Is the scene being set for countless legal challenges?

In June, the Minister of Health – Doctor Aaron Motsoaledi – released the Medical Schemes Amendment Bill for public comment. At the same briefing, he also spoke extensively about the National Health Insurance (NHI) and how it will be practically implemented.

One of the key aspects of NHI is that it will be very data rich and will only be a success if it is run by quality data. What are the legal implications of this? At a recent briefing held by the Institute of Health Risk Managers (IHRM), Altair Richards – an Executive at law firm ENS Africa – said that the road ahead will be bumpy and filled with challenges. 

Central command

Richards points out that the Medical Schemes Amendment Bill introduces the concept of a Central Beneficiary Register (CBR). 

This means that the powers of the Council for Medical Schemes (CMS) has been extended to include the following:

• the collection and dissemination of information about any aspect of private healthcare. This includes information about prices, the utilisation and costs of relevant health services;
• to make rules and issue circulars for the purpose of the performance of its functions and the exercise of its powers; and
• to establish and maintain a Central Beneficiary Register. 

“The contemplated section 8A within the Medical Schemes Amendment Act extends the powers of the Council by empowering it to require that medical schemes disclose information to it. This information includes: the practice number of a healthcare provider, the number of unique beneficiary visits or admissions, the total amount claimed by the healthcare provider, and the amount a medical scheme pays from risks as well as the amount paid by medical schemes from savings,” said Richards.

It is noted that section 8A is limited in two ways. The information must be required by the Council; and no personal medical information or diagnosis may be required from the medical schemes. 

“What does personal information mean? The information required by the CMS may not provide insights into the beneficiaries' identity. This includes his or her names, date of birth, address, identity number, medical scheme membership number or health status,” said Richards. 

Previous protection

In terms of section 14(1) of the National Health Act 61 of 2003 (“NHA”), all information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential. 
Section 14(2) provides that, subject to section 15 of the NHA, no person may disclose any information contemplated above unless: the user consents to that disclosure in writing, there is a court order or a law which requires that disclosure, or non-disclosure of the information represents a serious threat to public health. 

“The purpose of the CBR is to establish a database that can assist with identifying and assessing risks within medical schemes and the NHI. The CBR is ultimately for the better management of the rights and obligations of beneficiaries of medical schemes,” said Richards. 

Will there be errors?

Does this mean that it will be plain sailing from here? 

No. When one considers the sheer volume of information that the CMS requires, there may be some instances where information of a personal nature is handed over. 

When this is the case, there will be legal challenges. Richards points out that the following general principles are important to note:

• in order to determine whether a law of general application meets the standard of justification under section 36(1) of the Medical Schemes Amendment Bill, the law must, first, have a purpose sufficiently serious to justify the limitation of a right to privacy;
• thereafter, it must be determined whether there is any rational connection between the limitation to the right of privacy and its purpose; and
• after these two enquiries, proportionality is applied. This means that the importance of the purpose of the information is weighed against the extent of the infringement against a person’s right to privacy. This normally involves a consideration of the nature of the right to privacy and whether the same purpose cannot be achieved by employing less restrictive means. 

Minimum information

While there are statutes and guidelines that will ensure that personal information is protected as far as possible. We must all come to terms with the fact that there is no way to exclude this information in every instance. 

“Quite extensive personal information may be required from citizens and legal permanent residents of South Africa to successfully roll out the NHI programme in its entirety.  Systems would also need to be put in place to identify and exclude persons who do not fall into these categories of persons,” said Richards. 

She adds that one would expect that information gathering by the Department of Health would be from the individuals themselves to be issued with an NHI card. 

“It is not outside of the realm of reason that certain personal information would also be required to be provided by medical schemes and administrators for verification purposes,” said Richards.

If we look at the NHI from an insurance perspective, information such as the prevalence of a disease needs to be known to establish where the concentration of risk is. Therefore, resources can be allocated accordingly. 

Editor’s Thoughts:
There is simply no way to run the NHI without certain information. Does this mean that the Department of Health is in for a mountain of legal challenges in the future when it comes to personal information? Only time will tell. Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts jonathan@fanews.co.za.