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Section 59 interim investigation report on racism – Constitutional expert weighs in on validity

“Critics of the report fail to understand the findings. The report DOES NOT say legitimate investigations of wrongdoing is racist because it identified more black wrongdoers, it says, the med schemes have not proven that the investigations were equitable and legitimate.” This was the reaction of Professor Pierre de Vos, author of the Blog, Constitutionally Speaking, as a result of criticism against the recent release of the Section 59 Interim Investigation Report into allegations of unfair racial discrimination and procedural unfairness.

In his blog post, De Vos explains that ‘Discrimination’– much like ‘freedom of expression’– is a commonly used, but much misunderstood, term. Everybody thinks they know what discrimination means and how the law regulates it, while only a few ever take the trouble to read the relevant legal texts.”. “…our law does not require proof of discriminatory intent to make a finding that a person or institution unfairly discriminated against anyone in conflict with the law.”

According to De Vos, medical schemes (like all other private institutions or individuals) are prohibited from unfairly discriminating against anyone on any ground, including race, in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).” As those who discriminate against others often defend themselves by claiming they had not done so intentionally, and as it can be very difficult to prove that somebody had the requisite intension to discriminate, PEPUDA’s focus on the impact of the “policy, law, rule, practice, condition or situation” (instead of on the intension of those who cause the discrimination), makes it more difficult for those who discriminate to escape legal liability.” Therefore, the law will still be able to hold the discriminators accountable by focusing on the discriminatory impact of the wrongdoers.

Ngcukaitobi’s panel did not find “evidence of explicit racial bias in the algorithms” used to identify potential fraud, waste and abuse by healthcare practitioners, or in the methods that the administrators and schemes use to identify such practices. However, the panel found that “there is a substantial difference in fraud, waste and abuse outcomes between black and non-black practitioners over the period January 2012 to June 2019

“Thus, the finding in the interim report that medical schemes were 1.4 times more likely to classify black medical professionals as having committed fraud, waste and abuse than white practitioners, in effect amounts to a finding that the medical schemes discriminated on the basis of race because the way it handled these cases disproportionately impacted on black medic al professionals,” according to de Vos. But, as he explains, discrimination is only unlawful if it is found to be unfair (although it is presumed to be unfair once it has been shown that racial discrimination took place).

When the purpose of the discrimination is extremely important and sensible, and the impact of the discrimination is minimised, a court is likely to find that the discrimination was fair. In this case the medical schemes will have to show that the aim of the discrimination was to root out fraud, waste and abuse by health care practitioners. “I suspect the only way medical schemes would be able to escape a finding that they are guilty of unfair racial discrimination, would be to show that in fact they treated black practitioners and white practitioners in very close to an identical manner when investigating them,” he clarifies.

Click here to read the blog post of Pierre de Vos.

Click here to read Discovery’s response to members.

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