LITTLE MISS MUFFET ADDRESSES THE SPIDERAhmore Burger-Smidt

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INTRODUCTION

> In terms of the provisions of the Consumer Protection Act 68 of 2008 (“CPA”)

> all patients are considered as ‘consumers’ from a legal perspective

> This means that patients also enjoy the rights of the consumer

> Health care practitioners may find themselves as ‘suppliers’ or ‘retailers’ as part of a supply chain and potentially liable for harm and loss suffered by a patient in terms of the no-fault liability provision

> Health care practitioners are within the chain that extends from manufacturer to consumer

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SCOPE OF THE ACT

> applies to every transaction occurring within South Africa involving the supply of goods or services in exchange for consideration, unless the transaction is exempted from the application of the CPA

> Therefore the provision of a healthcare service to a patient in exchange for remuneration and an expected positive outcome would fall within the scope and ambit of the definition of the term ‘transaction’ in the CPA

> The scope of the CPA is very wide, and if found to conflict with other concurrent health care legislation (e.g. the Health Professions Act or the Medical Schemes Act), the Act offering the greater protection to the consumer will apply

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FUNDAMENTAL DEFINITIONS

> ‘Consumer’ includes both a person who purchases goods or services and a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business. It is therefore apparent that the definition of ‘consumer’ includes a patient

> ‘Goods’, in terms of the CPA, includes anything marketed for human consumption and would therefore include medicines, medical services and consumables

> ‘Service’ refers to, but is not limited to, work performed by a person for the direct or indirect benefit of another, including the provision of information, advice or consultation. Examples of a ‘service’ are a consultation with a health practitioner, medical advice rendered by such a practitioner, or any medical intervention, such as an operation. ‘Service’ further includes the undertaking, underwriting or assumption of risk by one person on behalf of another. This would include medical scheme cover and services provided under risk-sharing arrangements

> Patients are consumers and beneficiaries of services

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FUNDAMENTAL CONSUMER RIGHTS ESTABLISHED BY THE CPA

> the right of equality in the consumer market

> the right to privacy

> the right to choose

> the right to disclosure and information

> the right to fair and responsible marketing

> the right to fair and honest dealing

> the right to fair, just and reasonable terms and conditions

> the right to fair value, good quality and safety

> the right to hold the supplier accountable to consumers

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THE RIGHT OF EQUALITY IN THE CONSUMER MARKET

> The CPA protects the patient against discriminatory marketing. This protection is premised on the right to equality in the consumer market

> Differential treatment which constitutes unfair discrimination, may also not occur when interacting with the consumer

> Decisions as to which persons to accept as patients and the level of fees to be charged, should not be based on discriminatory grounds

> This may find expression in applying different standards in respect of benefit option

> to provide generic medicines to those medical scheme members on low-cost plans only

> relate to the decision to accept a person into a particular medical scheme, or to provide a different quality of service to a category of patients, based on race or the ability to pay, or to provide different levels of fees to certain categories of patient

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THE RIGHT TO CHOOSE

> Bundling of goods and services

> The right of the consumer to select suppliers provides, inter alia, that a supplier may not group or bundle goods by requiring that a consumer buy goods or services from that supplier or enter into an additional agreement or transaction with the same supplier or a designated third party

> This would prevent, for example

> requiring to become a member of a medical scheme, a person must also become a member of a loyalty programme from the same scheme, or

> requiring that a patient enters into a contract with a specific third party (other health care provider) for the provision of a service that is available at a lower cost from a different provider

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THE RIGHT TO CHOOSE

> Patient’s right to cancel advance reservation, booking or order

> A patient has the right to cancel any advance booking reservation or order for services to be supplied

> The doctor or hospital that makes such a commitment and accepts the reservation may require payment of a reasonable deposit in advance and impose a reasonable charge for cancellation of the reservation

> That fee cannot be imposed if the patient cannot honour the booking reservation because of death or hospitalisation

> The cancellation charge is unreasonable if it exceeds a fair amount in the circumstances having regard to the nature of the services, the length of the notice of cancellation, the potential for the doctor or hospital acting diligently to find an alternative patient, and the general practice of the relevant industry

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THE RIGHT TO FAIR AND HONEST DEALING

> Unconscionable conduct

> The consumer, who in terms of the CPA is entitled to the right to fair and honest dealing, is also protected from ‘unconscionable conduct’, which means improper or unethical conduct of such a degree that it would shock the conscience of a reasonable person

> It is also unconscionable for a supplier knowingly to take advantage because a consumer is unable to protect his or her own interests as a result of physical or mental disability, illiteracy, ignorance, the inability to understand the language of the agreement, or any similar factor

> This provision sets a very high standard for suppliers to ensure that consumers understand agreements, particularly in the case of vulnerable (and often uneducated or illiterate) consumers

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THE RIGHT TO FAIR VALUE, GOOD QUALITY AND SAFE GOODS

> Prior to the CPA medical malpractice suits were based on the common law principles of negligence. The injured patient had to prove that the doctor acted negligently in his provision of care, and that this negligence resulted in injury

> This required that four legal elements be proven –

> a professional duty owed to the patient (duty to care)

> breach of such duty

> injury caused by the breach

> resulting damages

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THE RIGHT TO FAIR VALUE, GOOD QUALITY AND SAFE GOODS

> These common law principles conform to the provisions of the National Health Act. However, the new CPA deviates from the common law and the National Health Act

> Health care practitioners can now not only be sued for negligence that resulted in harm to the patient, but also for supplying the patient with a faulty product that led to harm or loss

> The CPA further states that a supplier of services, who in conjunction with performing the said services, applies, supplies, installs or provides access to any goods, is regarded as a supplier of those goods to the consumer for the purpose of this provision. This provision may impose strict liability on a range of health practitioners who supply, provide access to, or implant prostheses or medical devices

> Class action

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CONCLUSION

It is clear that the CPA has a far-reaching impact on the rights of a patient in light of the fact that a patient is a consumer under

the CPA

THANK YOU23 July 2014

Legal notice: Nothing in this presentation should be construed as formal legal advice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses.

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