This correspondence hereby reaffirms the position of the Health Professions Council of South Africa (HPCSA) on the matter pertaining to global fees and an alternative reimbursement model.
On 13 April 2017, Council released a media statement urging healthcare practitioners not to sign global fees agreements that may violate the HPCSA Ethical Rules. Council urged health professionals to defer entering into global fees or similar financial and clinical arrangements or contracts until all aspects relating to the law, ethics, clinical autonomy and funding mechanisms have been properly canvassed with all stakeholders.
Council engaged healthcare practitioners and different stakeholders since 16 May 2017 through roadshows held in Johannesburg, Durban, Cape Town and Bloemfontein and different meetings held with role players in global fees arrangements. A meeting still needs to be held with the Council for Medical Schemes as an important stakeholder in this matter. Council has also accessed some of the contracts related to global fees or alternative reimbursement arrangements.
Practitioners are advised that it is permissible for them to enter into global fees contracts, provided that such contracts comply with Ethical Rules 3, 7, 10, 12, 13, 18, 25 and 27A in Booklet 2 of the Ethical and Professional Guidelines of the Health Professions Council of South Africa as outlined below:
1. Statutory Mandate and ethical duties
The Health Professions Council of South Africa is a statutory body established under the Health Professions Act, 1974 (Act No. 56 of 1974 – “the Act”). The HPCSA is mandated to regulate the health professions registrable in terms of the Act in the Republic and functions through 12 Professional Boards operating under its auspices. The Professional Boards control the professions falling within their ambit under the overarching coordination of, and guidance of the HPCSA and are responsible for:
- Setting standards for the Education and Training, Registration and Professional Practice of all health professionals registered under the Act;
- Fostering compliance with the standards;
- Ensuring ongoing continuing professional development of practitioners and investigate complaints lodged against practitioners registered under the Act.
In achieving its motto of “Protecting the Public and Guiding the Professions”, Council has made rules in terms of Section 49 of the Act that are the basis of the guidance provided herein. A Professional Board concerned may inquire into and deal with any complaint of unprofessional conduct which may be brought before such a Board. In doing so, the Board shall be guided by the rules, annexure to the rules, ethical rulings or guidelines and policy statements which the Board concerned or Council makes from time to time.
As professionals, practitioners have a “moral obligation” based on their qualifications and registration with the HPCSA to practise their professions within the Republic. As professionals, practitioners enter into contractual relationships with patients in which they have a duty to provide healthcare while respecting patient autonomy (obtain informed consent and maintain professional secrecy). Duties that practitioners have towards their patients may be ethical and/or legal in the personal, social, professional or political spheres of their lives.
2. Ethical Rules and Guidelines to consider before entering into global fee or alternative reimbursement agreements
2.1. Advertising and canvassing or touting (Ethical Rule No.3)
Although practitioners can advertise their services or permit sanction or acquiesce to such advertisement within certain parameters, they are prohibited from canvassing or touting or allowing canvassing or touting to be done for patients on his or her behalf. Canvassing is defined as conduct which draws attention, either verbally or by means of printed or electronic media, to one’s personal qualities, superior knowledge, quality of service, professional guarantees or best practice. Touting refers to conduct which draws attention, either verbally or by means of printed media, to one’s offers, guarantees or material benefits that do not fall in the categories of professional services or items, but are linked to the rendering of a professional service or designed to entice the public to the professional service.
Practitioners are advised to refrain from any alternative reimbursement agreement that has an element of canvassing and/or touting as explained above.
2.2. Fees and Commission (Ethical Rule No. 7)
This ethical rule prohibits practitioners from paying commission or offer any material consideration (monetary or otherwise) to any person for recommending patients. Practitioners are further prohibited from offering or accepting any payment, benefit or material consideration which is calculated to induce him or her to act or not act in a particular way not scientifically, professionally or medically indicated or to under-or over-service or over-charge patients. Practitioners are also prohibited from sharing fees with any person or with another practitioner which has not taken commensurate part in the services for which such fees are charged.
Practitioners are advised to refrain from alternative reimbursement arrangements that will induce them to either under-or over-service their patients and to act or not to act in a way that is best to their patients as scientifically/professionally/medically indicated. Sharing of professional fees due to a practitioner with any person or entity that did not take part in the care of a particular patient is unethical and practitioners should refrain from arrangements that have an element of sharing their professional fees.
2.3. Supersession (Ethical Rule No. 10)
Practitioners should refrain from any arrangement that involves taking over patients from other practitioners when they are aware that those patients are in active treatment of another practitioner unless they themselves are responsible for informing the other practitioner about taking over their patients at the patients’ request and establishing from the other practitioner about the kind of treatment the patients are currently receiving.
This ethical rule is likely to be breached in circumstances where the treating practitioner may not be involved in the alternative reimbursement arrangement and patients under their care may be moved to those practitioners who are part of the arrangement.
2.4. Professional Reputation of colleagues (Ethical Rule No.12)
In any alternative reimbursement, arrangement practitioners should not cast reflections on the probity, professional reputation or skill of another practitioner registered under the Health Professions Act. This ethical rule should be read together with the ethical rule that prohibits canvassing.
2.5. Professional Confidentiality (Ethical Rule No.13)
Should there be other role players in the alternative reimbursement arrangement on who will have access to the patient’s confidential information, an individual practitioner has a duty to obtain an expressed consent from the patient. Practitioners are reminded that they still have an individual duty to their patients and this duty should not be compromised by an alternative reimbursement arrangement.
2.6. Professional Appointments (Ethical Rule No.18)
Practitioners are advised to refrain from arrangements which have an element of rendering them as employees in terms of Section 200A of the Labour Relations Act which states that, ‘…, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:
- The manner in which the person works is subject to the control or direction of another person;
- The person’s hours of work are subject to the control or direction of another person;
- The person is economically dependent on the other person for whom she/he works or renders services;
- The person is provided with tools of trade or work equipment by the other person.
It is Council’s view that any arrangement that compromises the practitioner’s professional autonomy with the imposition of clinical pathways or clinical protocols which also prevents the practitioners from acting in the best interest of their individual patients renders such practitioners as employees and such contract should be made available to Council in terms of Ethical Rule 18.
2.7. Reporting of impairment or of unprofessional, illegal or unethical conduct (Ethical Rule No. 25)
Practitioners are reminded of their duty in terms of this rule to report any unprofessional, illegal or unethical conduct on the part of another practitioner to the HPCSA. Council shall provide a dedicated platform for practitioners or any other person to report any unprofessional/illegal/ unethical conduct related or not related to alternative reimbursement arrangements so that further action can be taken against such practitioners.
2.8. Main responsibilities of healthcare practitioners (Ethical Rule No. 27A)
Practitioners should always remember that alternative reimbursement arrangements do not absolve them from their duties or responsibilities. These duties or responsibilities include, but are not limited to the following:
- Acting in the best interest of their patients;
- Respecting patient confidentiality, privacy, choices and dignity;
- Maintaining the highest standards of personal conduct and integrity;
- Providing adequate information about the patient’s diagnosis, treatment options and alternatives, costs associated with each alternative and any other pertinent information to enable the patient to exercise a choice in terms of treatment and informed decision-making pertaining to his or her health and that of others;
- Keeping their professional knowledge and skills up to date;
- Maintaining proper and effective communication with their patients and other professionals;
- Obtain informed consent from their patients including informing patients about their professional fees for services to be rendered in terms of Section 53(1) of the Health Professions Act; and
Furnishing their patients with a detailed account in terms of Section 53(2) of the Health Professions Act and Section 59(1) of the Medical Schemes Act.
The guidance provided here is not exhaustive and practitioners can direct an email to email@example.com for further guidance. Council commits itself to a turnaround time of 5 working days to respond to any request for guidance on global fees.
Practitioners have 90 days to correct any arrangement that is in contravention of the HPCSA’s rules or to terminate such an arrangement.
All the best,
The HPCSA Team