Friday, October 12, 2012

The Meaning of "Pay in Full" with regards to the Medical Schemes Act

By Dirk Markhen

During the current 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 a legal court by way of a demand to issue a declaratory order with regards to the explanation of the phrase "pay in full" in regulation 8(1) of the General Regulations made pursuant for the Medical Schemes Act, 131 of 1998.

The candidates contended that the Courts needed to decide three issues, that is: 1. The first applicant's right to initiate proceedings for declaratory aid; 2. The interest and locus standi of the intervening members in opposing the relief wanted by way of the applicants; and 3. The concise explanation of the terminology "pay in full" in regulation 8(1) of the General Regulations which were promulgated in terms of section 67 of the Act.

Regulation 8 has been in power since 1 January 2000. According to the appliers, the actual problem begun on 11 November 2008 once the Appeal Board resolved two cases on appeal which were forwarded from the Appeal Committee with respect to section 50 of the Act. The Appeal Committee as well as the Appeal Board had, pursuant to these two decisions, interpreted the phrase "pay in full" in regulation 8 to indicate that the professional medical scheme need to effect complete repayment of the service providers' bill in respect of the costs of providing heath care treatment services for Prescribed Minimum Benefits without taking the principles of the professional medical scheme into consideration in working with any claims.

It was actually the applicants' argument that "pay in full" implies settlement according to the regulations of the Healthcare Scheme, while according to the respondents, the judgements by the Appeal Board have not been questioned up to now and presently medical aid schemes are bound to this authority and still have to repay service providers' invoices in full.

The primary grievance via the participants could be that the first applicant didn't have direct and substantial interest in the application since the verdict would not have a direct effect on it. Although the first applicant suggested it represented 75 licensed healthcare aid schemes and for that reason had locus standi, the Court discovered this to not be the case. This is because of the reason that the first applicant saw fit to have the second candidate, who's an authorized professional medical aid scheme, coupled. Moreover, only 15 registered professional medical schemes, within the starting and supplementary founding affidavits, affirmed that a declaratory order needs to be sought.

The Court held that had the primary candidate been so confident that it defended all 75 healthcare aid schemes it wouldn't have been essential to join the other applicant or to obtain affidavits and signatures of 15 members of the 1st candidate. The Court decided out of this that the first applicant didn't in fact legally represent 75 members, but only the 15 members mentioned within the documents.

The non-joinder of all of the medical schemes rendered the application fatally defective as the Court could not discover that the primary candidate, as being a standard representative of the professional medical schemes, will be prejudicially impacted by a judgment, but discovered that its members may be prejudicially impacted and consequently, many of the associates ought to have jointly implemented the request for any declaratory order.

The Judge learned that the 1st applicant was without locus standi for the following reasons:

1. The matter was one which might be classified as a representative issue, although not every one of the professional medical schemes had been combined and it has not been announced as a representative matter because of the fact that the first applicant was lacking any authority to litigate on behalf of all 75 of its associates;

2. In order to commence steps with respect to Section 38 of the Constitution, a litigant should show that a right enshrined inside the Bill of Rights may be encroached upon along with ample concern in the relief sought. The first candidate didn't expressly aver such infringement and the Judge found out that the First Litigant may not be directly affected by the ruling and didn't have a satisfactory involvement with the relief sought.

For the purpose of the second candidate the judge held that it could not succeed in the application by itself, as none of the other medical aid schemes or managers had been connected.

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