The Decryption Of "pay In Full" In Terms Of The Healthcare Schemes Act

By Dirk Markhen


During the current matter 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 application to issue a declaratory order with regards to the interpretation of the phrase "pay in full" in regulation 8(1) of the General Regulations made pursuant towards the Medical Schemes Act, 131 of 1998.

The applicants fought that the Courts required to consider three problems, which is: 1. The first applicant's entitlement to commence procedures for declaratory aid; 2. The interest and locus standi of the intervening respondents in opposing the relief looked for by the appliers; and 3. The meaning of the terminology "pay in full" in regulation 8(1) of the General Regulations that had been promulgated with respect to section 67 of the Act.

Regulation 8 has been around in force since 1 January 2000. According to the appliers, the current problem begun on 11 November 2008 once the Appeal Board decided two cases on appeal which was forwarded by the Appeal Committee in terms of section 50 of the Act. The Appeal Committee and the Appeal Board had, pursuant to these two judgements, considered the phrase "pay in full" in regulation 8 to mean that the professional medical scheme should effect complete repayment of the service providers' invoice in respect of the fees of supplying health care services for Prescribed Minimum Benefits if you don't take the principles of the professional medical scheme into consideration in working with any problems.

It had been the applicants' contention that "pay in full" indicates payment according to the policies of the Healthcare Scheme, while in accordance with the participants, the decisions by the Appeal Board haven't been questioned as yet and presently healthcare aid schemes are bound to this power and have to pay service providers' bills completely.

The primary criticism by the respondents could be that the first applicant had no immediate and substantial concern in the application as the judgment would not have a visible impact on it. Even though the first applicant contended that it defended 75 licensed medical aid schemes and for that reason had locus standi, the judge identified this not to be. It was due to the fact that the first candidate saw suitable to have the second candidate, who's a registered healthcare aid scheme, joined. Additionally, only 15 registered healthcare schemes, in the starting and supplementary founding affidavits, confirmed that a declaratory order should be sought.

The Judge held that had the first candidate been so confident that it defended all 75 professional medical aid schemes it wouldn't have been essential to join the 2nd applicant or to get hold of affidavits and signatures of 15 members of the primary applicant. The Court decided from this that the first applicant didn't in reality represent 75 members, but only the 15 members stated within the documents.

The non-joinder of all the healthcare schemes made the application fatally flawed as the Judge couldn't discover that the primary applicant, as being a standard representative of the healthcare schemes, will be prejudicially impacted by a verdict, but discovered that its members may be prejudicially affected and accordingly, many of the participants should have jointly implemented the application for a declaratory order.

A Legal Court found out that the initial applicant did not have locus standi for the following reasons:

1. The issue was one which may be considered a representative issue, although not every one of the professional medical schemes have been amalgamated and it had not been started as a representative matter because of the fact that the first applicant didn't have any mandate to litigate on the part of all 75 of their associates;

2. In order to commence action with respect to Section 38 in the Constitution, a litigant should demonstrate that a right enshrined in the Bill of Rights may be encroached upon as well as ample concern in the relief sought. The 1st applicant didn't expressly aver any such infringement and the Judge found out that the 1st Plaintiff wouldn't be directly influenced by the judgment and did not have a satisfactory interest in the relief sought.

With regard to the second candidate the court held it will not be successful in the application on its own, as not one of the alternative healthcare aid schemes or managers had been amalgamated.




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