On 15 March 2020, the Head of South Africa’s National Disaster Management Centre classified the Covid-19 pandemic as a national disaster and a number of regulations in terms of the Disaster Management Act followed soon thereafter. All this has been a bid to curb the spread of Covid-19 as well as establish an efficient, flexible and effective system for delivery of services to those in need. In trying times, we have come together even more than when we won the Rugby World Cup.
French President Emmanuel Macron was recently quoted aptly summarising the crux of our present dilemma of delivering health services in a resource-scarce context:
“What this pandemic reveals is that there are goods and services that must be placed outside the laws of the market.”
For a long time, the fragmented state of South Africa’s healthcare system is something that health activists and healthcare users have lamented. The private health sector, with all its resources, serves only about 16% of the population, while the under-resourced public health sector serves the rest.
From the onset of South Africa’s response to Covid-19, it was clear that our efforts would not be successful unless the rules of the game were changed. The government has been proactive in this regard. The first and crucial start was to change the competition rules in terms of the Competition Act.
The purpose of the Competition Act is to foster healthy competition between players in the same sector. In relation to healthcare services, this means that healthcare service providers and schemes compete for the same healthcare users based on efficiency, adaptability, competitive prices and product choice. Under normal circumstances, sections 4 and 5 of the Competition Act restrict practices between competitors, which involve dividing markets by allocating market share, healthcare users [customers], supplies, territories or specific types of goods and services. It also restricts anyone along the supply chain from enforcing conditions that prevent or reduce competition in a market unless they can show a gain in efficiency, which outweighs the reduction in competition.
Minister of Trade and Industry Ebrahim Patel promulgated regulations allowing for a Covid-19 block exemption for the healthcare sector that apply while the pandemic remains a national disaster. The regulations provide special rules to override the usual rules contained in sections 4 and 5 of the Competition Act, outlined above. Regulation 3 allows private healthcare sector players to enter into agreements or practices for the sole purpose of:
In addition to making provision for the type of agreements between actors in the private healthcare sector, the Regulations also allow for agreements or practices between the private healthcare sector and the Department of Health for the purposes of supporting the Department of Health. According to Regulation 4, such agreements are permitted in order to make available additional capacity at [private] healthcare facilities to the public healthcare sector and to ensure adequate medical supplies to the public healthcare sector.
These regulations are an acknowledgement of the need for close collaboration and coordination to ensure access to healthcare, prevent the exploitation of patients and provide an essential public good, which is guaranteed in section 27 of the Constitution. They are crucial to the Covid-19 response.
But, much like other rules, very little will come out of them if there are no deliberate efforts to enforce them. Much has been said about how the private sector needs to come to the party, but what do we know so far about the collaboration and coordination between the public and private health sectors?
In respect of agreements and practices between private healthcare service providers, it is clear that the exemptions will apply only when the Department of Health has taken the first steps of requesting and co-ordinating the various agreements or practices contemplated in the regulations. This requires that the minister act decisively in coordinating the national health system, for which he is responsible.
On the other hand, some prominent actors in the private health sector have availed themselves and indicated their readiness to collaborate with one another and with the public health sector, and assist the Covid-19 response.
Netcare has committed to treat public patients in Netcare facilities on a not-for-profit, cost-recovery basis. However, the giant private healthcare provider has indicated that due to its limited capacity, any referrals from the public sector will be assessed and pre-authorised by Netcare on a case-by-case basis.
On 30 March 2020, Discovery Health announced that it had entered into a partnership with Vodacom in terms of which free online doctor consultations for Covid-19-related issues will be available to all South Africans. On 18 March 2020, the Head of Department of the Western Cape Department of Health announced that local and provincial health departments in the province would be collaborating with the private health sector.
The willingness by the private and the public health sectors to combine efforts is a good start. But someone must take the lead in making sure that the collaboration and co-ordination actually take place. This obligation rests squarely on the Department of Health, which is charged with requesting and coordinating the communication and agreements or practices within the private sector as well as with the public sector.
The minister is also a key player, as he must specifically authorise any discussions or agreement on pricing between private healthcare providers, and presumably on how they will be remunerated by the Department of Health. We are one week into the lockdown, and we still do not have details of how these Regulations are being implemented to ensure communication, co-ordination and cost reduction with the aim of promoting access to healthcare for everyone during the Covid-19 pandemic national disaster.
This form of leadership demands that the minister uses all the legal mechanisms at his disposal to ensure that the constitutional imperative that everyone has the right to have access to healthcare services is realised.
In respect of Covid-19, the minister will have gone a long way to fulfil his obligation by facilitating the necessary agreements among private health sector players. We will see the change that is even more tangible once the public and private healthcare sectors reach an agreement on the cost of the necessary goods and services. Whether these are provided at cost, as proposed by Netcare, or on another acceptable scale (as decided by those with a seat at the negotiating table) — we all have a keen interest in a speedy resolution. DM
Conco is an attorney and Mafuma a legal researcher in Section27’s Health Programme.
This article was first published in Spotlight.
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