High noon for healthcare: Big guns of SA law saddle up for enquiry

The private healthcare inquiry, requested by Health Minister Aaron Motsoaledi and launched by the Competition Commission last year, is keeping to its proposed deadline, with a report expected in November this year.

This month, when the inquiry panel held a briefing session on its progress, the meeting room in Sandton was heaving with legal muscle.

“The turnout testifies to the importance of our work,” said the inquiry’s chairperson, former chief justice Sandile Ngcobo.

According to the inquiry director, Clint Oellermann, at least 14 legal firms, including Adams & Adams, Bouwer, Bowman Gilfillan, Cliffe Dekker Hofmeyr, ENSafrica, Fluxmans, Nortons Inc, Webber Wentzel and Werksmans, were acting for participants in the healthcare sector. He said there were also about five to six attorneys in private practice representing a single stakeholder or several collectively.

By the middle of November last year, the health inquiry panel had received 68 submissions on the healthcare sector, totalling 15?000 pages. 

The submissions came from hospital groups, healthcare funds, healthcare fund administrators, civil society, trade unions, healthcare professionals and their associations.

The 68 submissions were made public at the beginning of this month and currently the healthcare stakeholders and their lawyers are drafting responses to them, which have to be submitted by March 5.

Many of the legal professionals at the briefing raised the issue of time, arguing that just a month to comment on the 68 submissions was not adequate.

Ngcobo said the panel was re-evaluating the administrative timeline published in August last year because of the high number of submissions received. 

“The challenge we have in this regard is to strike a delicate balance between, on the one hand, ensuring that we have all the information and data we need to make an informed decision and, on the other hand, keeping to the deadline,” he said. 

Last week the inquiry also announced that stakeholders could apply to make presentations at the public hearings of the inquiry. The deadline was March 31.

“The responses must be concise and succinct and must address only those matters that you consider to be inaccurate and must provide support for why you consider it inaccurate,” said Ngcobo told the meeting. “While we welcome all information that is relevant to the inquiry, we wish to stress that this does not provide the occasion to submit new information that should have been contained in the initial submission.”

A pre-hearing meeting to discuss availability and to iron out a public hearings programme will be held at the beginning of April.

Ngcobo said at the briefing that 17 of the 68 submissions claimed some of the information they contained was confidential. He said, in total, there were 39 claims of confidentiality in the 17 submissions, and the panel had managed to resolve 35 of them. The remainder would have to be decided by the Competition Tribunal. 

“Most of the submissions accept that private healthcare is too high,” he said. 

He added that many of the submissions involved “market power” in three key areas — hospital groups, medical schemes and specialist healthcare practitioners. According to some submissions, the market was overregulated, but others believed  there was not enough regulation. 

Ngcobo said many of the submissions claimed there was a lack of transparency about costs in the sector and this was disadvantaging patients.

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Lloyd Gedye
Lloyd Gedye
Lloyd Gedye is a freelance journalist and one of the founders of The Con.

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