Ethical standards in a different world

By Harry Rosen
CEO – South African Optometric Association

“The current stage in our history demands entirely new ethical perspective. Rapid globalization and technological innovation have brought about profound new risks to humanity’s survival “. Professor Toby Ord, Oxford University

“Based upon our findings, we recommend a set of interrelated interventions designed to promote systemic change to improve the context within which facilities, funders, and practitioners operate, and create a shift towards a pro-competitive environment.

These recommendations must be seen as a package. Market failures may persist if a partial approach to the implementation of our recommendations is adopted”. Health Market Inquiry 2019

AMENDMENTS TO HPCSA ETHICAL RULES

The amendments to the Ethical Rules as published in the Government Gazette on 17 November 2023 are far-reaching and, in many ways, monumental. To put this into perspective, refer to the communique disseminated by HPCSA Corporate Affairs on 23 April 2018, entitled ‘Acting Within Field of Practice’ (See Annexure A below). This was directed to the professions of Optometry and Audiology, at the time, but now has relevance for all HPCSA registered professions.

SYNOPTIC OVERVIEW

In essence, the amendments to the Ethical Rules give rise to the following.

SHARING OF FEES

Prior to the publication of the Amendment Notice, practitioners were only entitled to receive fees for services personally rendered, or for the services rendered by someone in their employment, which prevented certain alternative models of reimbursement, including global fee agreements.
- The Amendment Notice has now introduced Rule 7(6) of the Ethical Rules, which provides that a practitioner may share, charge, or receive fees from another practitioner provided that there is an express agreement, arrangement, or model of rendering multi-disciplinary based health-care services to patients which.
  - Is structured,
  - provides high quality health-care services or products,
  - contains costs of rendering health-care services,
  - enhance access to appropriate healthcare.

MULTI-DISCIPLINARY COLLABORATION

Multi-Disciplinary healthcare, defined as healthcare delivery that involves multiple health practitioners from different professions of healthcare, is now permissible.
Rule 8, therefore, now authorises collaboration between practitioners in different registration categories provided that an express agreement, arrangement, or model is in place which ensures high quality health-care services or products to patients, structures to contain costs, and enhanced access to appropriate healthcare.

SHARING OF ROOMS

“A practitioner may share his or her rooms with a person registered in terms of the Act, or in terms of any other legislation regulating health professions.”
Once again, therefore, the newly inserted Rule 8A appears to support the establishment of multidisciplinary practices, which may now operate together in the same establishment.

PROFESSIONAL APPOINTMENTS

Ethical Rule 18, prior to amendment, which relates to Professional Appointments should be read in conjunction with the HPCSA Policy on Business Practice (Section 2.4 – Employment of Practitioners). See Annexure B below.
- With the introduction of the amendment, non-registered employers would no longer be required to apply for approval from the HPCSA to employ registered practitioners to perform
  clinical services. Such employment needs to be considered within the context of health establishments.
- It needs to be stated , though, that professional appointments still meet predetermined criteria, which include a contractual arrangement that has as its primary aims the enhancement of the quality of health-care services to patients, is structured to contain costs, enhance access to appropriate, high quality health-care services or products to patients, and is not designed to extract profit for the benefit of the practitioner or their employer to the detriment of patients”.
- Based on vehement opposition to the amendment to Rule 18, primarily by the SAOA, the amendment to Rule 18 is to be repealed.

SHARES IN HOSPITALS: DIRECT OR INDIRECT

The Amendment Notice also provides for a change to Rule 23A of the Ethical Rules. One of the current requirements for a practitioner to have shares in a hospital, is that the practitioner must submit an annual report to the HPCSA containing certain information. The Amendment Notice expands on the reporting requirements in Rule 23A(h) and provides that the report to be submitted to the HPCSA must contain the information which includes, amongst others,
- the number of patients referred by him or her or his or her associates or partners to such hospital or health care institution and the number of patients referred to other hospitals in which he or she or his or her associates or partners hold no shares.
- the agreements concluded in relation to the acquisition and/or ownership of the interests of shares in the hospital or health care institution.

SCOPE OF PROFESSION

The rendering of professional services by registered practitioners within their scope of profession remains sacrosanct and unaffected by the amendments. It thus remains a criminal offence for a non-registered person to render a professional function as defined in scope of profession.

QUESTIONS?

Whilst the amendments are noted primarily within the context of optometry and dispensing opticianry, there are broader connotations that will need clarification. These include, but are not restricted to:

Final vs Proposed: The amendments are entitled “Proposed Amendments to the Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act, 1974” and were published in Board Notice 510 in GG 49720 (“the Amendment Notice”). Although the title of the Amendment Notice refers to “Proposed Amendments,” the Registrar of the HPCSA appears to have since confirmed that the amendments are indeed final.

Indemnity Insurance: Cover for medical malpractice, in particular, involving employment of registered practitioners by non-registered parties or multi-disciplinary collaboration may need review. At this time, however, brokers involved in the provision of medical malpractice cover appear to be of the view that (e.g.) fees for cover will not be affected.

Practice numbers and claiming: There appears to be no provision made for the issuing of practice code numbers to non-registered persons who lawfully employ registered practitioners to render services to medical schemes members (although the pharmacy experience also has relevance). The BHF are aware of the changes but are yet to issue a statement regarding modifications to practice numbers, if any.

BROADER INTERPRETATIONS OF THE AMENDED RULES

It is important to note that the intended amendments were initially published for comment as a Board Notice on 27 May 2022. It appears that many of the professions were silent at the time.

On 17 November 2023, the Registrar of the Health Professions Council of South Africa (“HPCSA”) published amendments to the Ethical Rules for the Conduct of Practitioners Registered under the Health Professions Act, 1974 (GNR 717, dated 4 August 2006) (“the Ethical Rules”).

There is no doubt that the amendments, as presented, change the landscape in which healthcare practitioners collaborate with each other as well as other role-players.

HEALTH MARKET INQUIRY: INFLUENCE

It appears that the Health Professions Council of South Africa (HPCSA) has considered the recommendations put forth in the Health Market Inquiry (HMI) report. This comprehensive investigation, spanning five years, delved into the South African private healthcare sector, resulting in a meticulous Final Report published in September 2019. The HMI’s findings and recommendations, documented across more than 250 pages.

The HMI referred to regulatory barriers that appeared to impede healthcare innovation, particularly restrictive practices around multidisciplinary group practices and the employment of practitioners. It was concluded that these challenges necessitate robust regulatory reform to cultivate an environment conducive to innovative care models.

In summary, it appears that the HPCSA has engaged with the HMI’s insights and proposals to enhance the private healthcare landscape in South Africa.

AMENDMENTS TO THE RULES

NEW DEFINITIONS

“Appropriate healthcare” means healthcare delivery where the expected clinical benefits of care to patients outweigh the expected negative effects to such an extent that the treatment is justified.
“Multidisciplinary healthcare” means healthcare delivery that involves multiple health practitioners from different professions of healthcare; “

INTRODUCTION OF RULE 7(6)

Prior to the publication of the Amendment Notice, practitioners were only entitled to receive fees for services personally rendered, or for the services rendered by someone in their employment, which prevented certain alternative models of reimbursement, including global fee agreements. The Amendment Notice has now introduced Rule 7(6) of the Ethical Rules, which provides that.

“Notwithstanding anything contained in sub-rules (4) and (5) above, a practitioner may share, charge or receive fees from another practitioner: Provided that in such an instance, there is an express agreement, arrangement or model of rendering multi-disciplinary based health-care services to patients which is structured, which provides high quality health-care services or products, contain costs of rendering health-care services, and enhance access to appropriate healthcare”.

INTRODUCTION OF RULE 8(5)

The Amendment Notice now introduces new Rule 8(5) which provides that –

“Notwithstanding anything contained in [Rule 8], a practitioner may provide health-care services with other registered practitioners, persons registered in terms of the [Health Professions Act No. No. 56 of 1974 (‘HPA’)], or in terms of any other legislation regulating health professions: Provided that the primary aim will be to enhance the quality of health-care services to patients, and further that there is an express agreement, arrangement or model of rendering multi-disciplinary based health-care services to patients which provides high quality health-care services or products to patients, structured to contain costs, and enhance access to appropriate healthcare”.

Rule 8, therefore, now authorises collaboration between practitioners in different registration categories provided that an express agreement, arrangement, or model is in place which ensures high quality health-care services or products to patients, structures to contain costs, and enhanced access to appropriate healthcare.

A further change in the Ethical Rules relates to Rule 8A. Prior to the enactment of the Amendment Notice, Rule 8A provided that “[a] practitioner shall not share his or her rooms with a person or entity not registered in terms of the Act” – which was interpreted as precluding registered persons from having medical rooms in the same establishment as that of a non-registered entity or person. Rule 8A has now been substituted and reads as follows –

“A practitioner may share his or her rooms with a person registered in terms of the Act, or in terms of any other legislation regulating health professions.”

Once again, therefore, the newly inserted Rule 8A appears to support the establishment of multidisciplinary practices, which may now operate together in the same establishment.

RULE 18

One of the most significant changes to Ethical Rules is the amendment to Rule 18. Rule 18 deals with professional appointments (including the employment) of healthcare practitioners. The pre-amended wording of Rule 18 read as follows –

“18(1) A practitioner shall accept a professional appointment or employment from employers approved by the council only in accordance with a written contract of appointment or employment which is drawn up on a basis which is in the interest of the public and the profession.

(2) A written contract of appointment or employment referred to in subrule (1) shall be made available to the council at its request”.

Accordingly, prior to its amendment, Rule 18, read with the HPCSA Policy on Business Practice, prescribed that a non-registered person or entity may only employ registered practitioners if the non-registered entity obtained permission from the HPCSA to do so – and pursuant to a contract that aligns with the interest of the public and the profession.

RULE 18(1) REVISED

Rule 18(1) was revised to read as follows–

“A practitioner shall accept a professional appointment or employment from employers accordance with a written contract of appointment or employment which is drawn up on a basis which is in the interest of the public and the profession: Provided that, the health practitioner ensures that the employment contract has as its primary aim the enhancement of the quality of health-care services to patients, is structured to contain costs, enhance access to appropriate, high quality health-care services or products to patients, and is not designed to extract profit for the benefit of the practitioner or their employer to the detriment of patients”.

In essence, non-registered persons were no longer required to apply for approval from the HPCSA to employ registered practitioners to perform clinical services. However, it is to be noted that this amendment refers to health facilities or established, accredited by the Department of Health, where health professionals are employed. Of interest is that sixty-four applications have been received by the HPCSA to employ registered practitioners, of which forty-four have been approved and twenty declined. Refer examples below.

In practical terms, as stated in a HPCSA communique, “practitioners are now empowered to ensure that prospective employers are suitable for ethical practice.”

NB. The SAOA vehemently opposed the amendment to Rule 18. It can now be confirmed that the amendment to Rule 18 is in the process of being repealed.

DIRECT OR INDIRECT SHARES IN HOSPTALS OR ANY OTHER HEALTH CARE INSTITUTION

Rule 23A of the Ethical Rules is also affected by the amendments. Rule 23A prescribes various requirements that must be met in order for a practitioner to have a direct or indirect financial interest or shares in a hospital or any other health care institution. One of the requirements is that the practitioner must submit an annual report to the HPCSA containing certain information. The Amendment Notice expands on the reporting requirements in Rule 23A(h) and provides that the report to be submitted to the HPCSA must contain the following information and documents –

the number of patients referred by him or her or his or her associates or partners to such hospital or health care institution and the number of patients referred to other hospitals in which he or she or his or her associates or partners hold no shares.
the agreements concluded in relation to the acquisition and/or ownership of the interests of shares in the hospital or health care institution.
how the acquisition of the financial interest is funded and whether there are other ancillary contractual relationships between all the parties to the transaction or with related parties and entities and if so, the nature of such contractual relationships.
policies or peer review protocols for admission of patients into such hospital or health care institution and quality monitoring mechanisms which serve to ensure that practitioners will comply with the Ethical Rules; and
any other information or document which the HPCSA may deem relevant.

The relevant practitioner must, in turn, ensure compliance with Rule 23A at all times.

The amendments to the Ethical Rules are therefore far-reaching and are arguably a step in a direction that aligns with an evolving healthcare service arena. The amendments, however, also highlight certain additional changes that need to be addressed in order to ensure consistency in legislation and policy as well as practical efficiency and proper application.

CONCLUSIONS

As already stated, the amendments to the Rules, as interpreted, will have a significant impact on the health care landscape. The SAOA will continue to engage other healthcare professions and role-players and keep members updated.

It is important to note that the amendments, as presented, from the perspective of the HPCSA, are applicable to all HPCSA registered professions in the spirit of enhancing accessibility and care for all South Africans. The amendments, in no way, are intended to impact on the professional discretion of practitioners nor to allow commercial influence over professional discretion.

ANNEXURE A

Acting within field of practice

by HPCSA Corporate Affairs23 April 2018

The Professional Board for Optometry and Dispensing Opticians notes with concern numerous queries and complaints around the performance of certain clinical and professional acts falling within the scope of the Speech, Language and Hearing Professions by practitioners not qualified and competent to perform such clinical acts.

Only practitioners registered with a specific HPCSA Professional Board are allowed to perform duties that fall within the applicable scope of practice.

The Board wish to highlight the following important issues applicable to the concept of ‘scope of Practice’ as contained in the HPCSA Ethical Rules:

Rule 21: “A practitioner shall perform, except in an emergency, only a professional act:

(a) For which he or she is adequately educated, trained, and sufficiently experienced; and

(b) Under proper conditions and in appropriate surroundings.

It is illegal, for persons who are not registered in terms of the Health Professions Act to perform clinical and professional acts falling within the scope of the profession of Optometry and Dispensing Opticians and scope of the professions falling within Speech, Language and Hearing Professions. Any person who, without registration in terms of the Health Professions Act, performs clinical and professional acts falling within the scope of the profession of Optometry and Dispensing Optician and Speech, Language and Hearing Professions commits an offence in terms of section 17 of the Health Professions Act. The aforementioned offence attracts, among other things, imprisonment for a period not exceeding 12 months.

Any registered practitioner who instructs any person who is not registered as an Audiologist in terms of the Health Professions Act to perform clinical and professional acts falling within the scope of the Speech, Language and Hearing Professions commits unprofessional conduct. The aforementioned unprofessional conduct attracts various sanctions in terms of section 42 of the Act.

Employment of other practitioner in different scopes of profession

In terms of Rule 8 (1) of the Ethical Rules, since an Audiologist cannot provide a supportive healthcare service to supplement an Optometrist, the employment of Audiologists/hearing Aid Acousticians by Optometrists or vice versa is prohibited. These are two distinct professions with distinct scopes of professions and are not registered in the same professional category.

Multidisciplinary practices

Rule 8(3) of the Ethical Rules of Conduct provides that: “A practitioner shall practice in a partnership, association or as a juristic person only within the scope of the profession in respect of which he or she is registered under the Act.”

Rule 8(3) of the Ethical Rules of Conduct therefore prohibits practicing as a juristic person in different scopes of professions. Section 54A of the Act therefore entitles practitioners to practice in an incorporated company. The Ethical Rules of Conduct provides for the practicing as juristic person by practitioners who are registered in the same profession and who practice the same scope of the profession.

Optometrist may not practice in a juristic person or incorporated company with an Audiologists because these are two distinct professions with two distinct scopes of the professions.

Last Updated on 23 April 2018 by HPCSA Corporate Affairs

ANNEXURE B

HPCSA Policy on Business Practice: Prior to the publishing of the amendment

Section 2.4. EMPLOYMENT OF PRACTITIONERS

Generally, the employment of practitioners by persons not registered in terms of the Act is not permissible; however, the following employment agencies are recognised for the purposes of employing practitioners that are registered under the Health Professions Act:

(i) The Public Service.

(ii) Universities / Training Institutions (only limited for purposes of training and research).

(iii) Mining companies & NPO’s/NGO’s (subject to approval of the relevant professional board).

(iv) All registered persons within the HPCSA may also employ fellow registered practitioners in accordance with the Ethical rules.

Any other agent; institution; person may lodge an application with the HPCSA for the purposes of employment of a practitioner registered with the Health Professions Council save that any other employment which falls beyond the professional practice is not required to lodge an application with the HPCSA.

If employment of practitioners is approved, applications for employment should be carefully considered taking the following criteria into consideration:

Motive or Goal: This should indicate the reason for employment.
Service to specific groups of people: Such as non- profit, charitable and similar organisations.
Training of students: Such as at universities set out above.
Clinical independence of practitioner: Practitioners should refrain from engaging in practices that would compromise patient care or in services not indicated in order to acquire financial or material benefit. No un-due influence should be exerted on practitioner to compromise his clinical independence.
Method of remuneration: There should be no Perverse Incentives. Undesirable practice enriching a practitioner either financially or in kind at the cost of a payer for professional practice with no evidence based scientific basis or cost-effective considerations.

Furthermore, all employing institutions should be accredited by the HPCSA subject to the condition that the practitioner’s clinical independence is not violated by the employing body and that the employing body also does not exploit the practitioner or make the practitioner to violate Council ethical rules.