Government Employees Medical Scheme wants court to block report on racial profiling of doctors

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Advocate Tembeka Ngcukaitobi in court.
Advocate Tembeka Ngcukaitobi in court.
PHOTO: Werner Beukes
  • A panel was appointed to investigate allegations by members of the National Health Care Professionals Association that they were being unfairly treated by medical schemes and their claims withheld on the basis of their race and ethnicity.
  • GEMS and the Board of Healthcare Funders last night launched an urgent application to interdict the release of the panel's interim report, scheduled to be published at noon on Sunday.
  • GEMS says it has been informed the report finds that, among other things, black healthcare providers "are unfairly discriminated against on the grounds of race".


The Government Employees Medical Scheme (GEMS) has launched urgent legal action to block the release of advocate Tembeka Ngcukaitobi's "scathing" interim investigation report on the alleged racial profiling of black, coloured and Indian medical practitioners by medical schemes.

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, which represents the majority of South Africa's medical schemes, last night launched an urgent application to interdict the release of the report, which was scheduled to be published at noon on Sunday.

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

Ngcukaitobi and advocates Adila Hassim and Kerry Williams were appointed by the Council for Medical Schemes in June 2019 to investigate allegations by members of the National Health Care Professionals Association (NHCPA) that they were being unfairly treated by medical schemes and that their claims were being withheld on the basis of their race and ethnicity.

In an affidavit filed on Sunday morning, Ngcukaitobi said GEMS had known since November last year that the council intended to release the panel's interim report publicly and had issued multiple press statements to that effect. At no point had GEMS objected to the report's publication, he added.

"It is simply not open to [GEMS and the BHF] to approach the court on extreme urgency to restrain the release of the report that they knew was imminent and which they acceded to since at least November 2020."

Reputational damage

GEMS, however, insists that the release of the report will "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 states in court papers.

While Kruger admits that it has not seen the interim report, he has told the Gauteng High Court that the Board of Healthcare Funders had informed the scheme that it "contains scathing allegations and findings in relation to GEMS (and others)".

He added that the board had reviewed the interim report and found that certain of its findings were "potentially prejudicial" to the medical aid schemes it represents.

Kruger insists that the interim report compiled by Ngcukaitobi, Hassim and Williams cannot be published, as the panel "is not vested with power or right" to release it. He says the Ngcukaitobi panel must give "GEMS and other affected parties the right to first comment and respond to the allegations and findings contained in the Interim Report, prior to any report being released to the public".

Two-year-long investigation

During the panel's two-year-long 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 had been forced to close their practices. This did not happen to their white colleagues, they said.

Several medical aid schemes made submissions to the panel, in which they sought to dispute any suggestion that racial profiling played any part in their treatment of medical practitioners.

Ngcukaitobi argues that, because of this, GEMS and the BHF's claims of procedural unfairness are baseless. He also maintains that the panel is under a legal duty to "circulate the report to all affected parties" – including the public.

"Moreover, it is in the public interest to release the report," he states.

"The public is entitled to know what the findings – even at interim stage – are… The effect of the application would be to frustrate the rights of the public, some of whom are members of [GEMS] from knowing about the contents of the report."

Ngcukaitobi contends that GEMS' case should either be struck from the roll because it is not urgent, or dismissed.

Judgment in the case has been reserved.



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