Govt medical scheme loses court bid to block report on alleged racial profiling

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  • Judge says case not urgent, strikes it from the court roll.  
  • The decision means the long-awaited report can finally be released. 
  • The Government Employees Medical Scheme says it has been informed report finds that, among other things, that black healthcare providers are "unfairly discriminated against on the grounds of race".

The Government Employees Medical Scheme has lost an urgent legal bid to interdict the release of Advocate Tembeka Ngcukaitobi’s "scathing" interim report on allegations that medical schemes have racially profiling black, coloured and Indian medical practitioners.

GEMS – which provides healthcare benefits to public service employees and is the second-biggest medical scheme in South Africa – and the Board of Healthcare Funders (BHF), which represents the majority of South Africa’s medical schemes, on Saturday night launched an urgent application to interdict the release of the report, which was scheduled to be published at noon on Sunday. 

The report is the result of an investigation by Ngcukaitobi and advocates Adila Hassim and Kerry Williams, who were appointed by the Council for Medical Schemes to investigate allegations by members of the National Health Care Professionals Association (NHCPA) that they were being unfairly treated by medical schemes and their claims withheld on the basis of their race and ethnicity. 

In court papers, GEMS legal advisor Marthinus Kruger stated that the scheme had been informed that the interim report contains findings that, among other things, black healthcare providers "are unfairly discriminated against on the grounds of race".

Pretoria High Court Judge Colleen Collis on Tuesday morning found that GEMS and BHF had been aware that the report would be released to the public since November last year and had failed "to convincingly persuade this court why they did not find it necessary and prudent to approach this court earlier".

She agreed with advocate Steven Budlender, for Ngcukaitobi and his fellow investigation panelists, that GEMS and BHF had embarked on litigation defined by "self-created urgency".

Instead of launching legal action as soon as they were aware the panel’s interim report would be published, she said, they "took a passive stance, folded their arms and waited until the eleventh hour".

Budlender had compared GEMS’ attempt to interdict the release of the interim report to former President Jacob Zuma’s aborted effort to interdict the release of then-Public Protector Thuli Madonsela’s State of Capture report.

But, he stressed, GEMS’ case was even weaker than that argued by Zuma – because, unlike the State of Capture report, the Ngcukaitobi panel report had only made recommendations and was not binding. 

Throughout his argument in a virtual hearing on Sunday, Budlender also questioned whether GEMS’ application was driven by genuine legal concerns or designed to ensure that the panel’s report would be “buried”.

The ruling means that the Ngcukaitobi panel report can now be released  to the public.

Aslam Bava, for GEMS, had earlier argued that the panel’s intended publication of the interim report was “an unlawful act” that the Scheme was attempting to prevent.

Bava insisted that the Ngcukaitobi panel had “usurped the powers” of the CMS by arranging to release the interim report at a press conference scheduled for noon on Sunday. He maintained that – despite the fact that GEMS and other medical aid schemes had provided responses to the claims made against them to the panel – it and other parties should be given the opportunity to comment on findings made against them, before the report was released.

“The panel doesn’t have the right to release the report,” he said, adding: “as strongly as it may feel about it”.

During the panel’s investigation, a number of doctors accused medical aid companies – including Discovery and Medscheme – of racial profiling, particularly in regard to their payment of doctors.

Unlike their white counterparts, black, Indian and coloured doctors claimed that they were required to share patients’ files when claiming for payments, an illegal breach of patient-doctor confidentiality.

Doctors also claimed that due to delayed or non-payment by medical aid schemes, some doctors had committed suicide, while others were forced to close their practices. This did not happen to their while colleagues, they said.

GEMS on Sunday argued that the release of the panel’s interim report – which it says contains “scathing” findings – would “seriously and irreparably injure GEMS’ good name and reputation” and violate its “right to be heard”.

“There is no way of undoing such harm once it has been inflicted”, Kruger stated in court papers.

This is a developing story.

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