How are Healthcare Professionals influenced under the Consumer Protection Act?

How are Healthcare Professionals influenced under the Consumer Protection Act?

How are Healthcare Professionals influenced under the Consumer Protection Act?

From a legal perspective, patients are considered consumers. Patients often utilise goods while benefiting from various services supplied by healthcare professionals and are therefore seen as consumers in the healthcare industry with the same rights that apply to all other industries.

In a previous blog we discussed Healthcare Professionals and their obligations to the POPI Act, this week we discuss some elements of the  Consumer Protection Act (CPA) and how Healthcare Professionals are influenced under the CPA.

What is the definition of a "patient" as per the Consumer Protection Act?

The term “patient” is defined as a person receiving medical treatment, while the term “consumer” under the Consumer Protection Act (CPA) is defined as a– 

  • person to whom goods or services are promoted or supplied in the ordinary course of the supplier’s business;
  • person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, unless the consumer is over the threshold or the transaction is exempt from the application of the CPA;
  • user of goods or recipient or beneficiary of services (even when the user, recipient or beneficiary wasn’t a party to the transaction);
  • franchisee in terms of a franchise agreement.

It is clear from both definitions that patients often utilise goods while benefiting from various services supplied by healthcare professionals and are therefore seen as consumers in the healthcare industry with the same rights that apply to all other industries (except those who applied for industry-wide exemption, such as the Medical Schemes Industry). Since patients are considered “consumers”, healthcare professionals are considered “suppliers” or “retailers” who participate in the healthcare supply chain. The CPA explains that the producer, importer, distributor or retailer of any goods is liable for any harm caused by supplying unsafe goods, a product failure, defect or hazard relating to any goods. 

Previously (under the Common Law), the onus was on patients to prove negligence with regard to poor healthcare provided that resulted in injury. However, due to the strict liability provisions under the CPA, the patient can now sue anyone in the supply chain without having to prove negligence.

Healthcare professionals can consider the following recommendations in order to be CPA compliant:

  • Prohibit any persuasive action in order to convince a patient to accept/utilise any product or service as this contradicts the patient’s right to fair and honest dealing;
  • Since consumers have the right to choose, ensure that a consent form includes all the necessary facts in order to inform patients about each aspect of decision-making (“informed consent”);
  • Written, informed consent in the healthcare industry is important since it provides the healthcare professional with a form of protection;
  • Ensure that all agreements, policies and consent forms are in plain and understandable language to overcome the language and cultural barriers in a diverse country such as South Africa;
  • All agreements, billing policies, etc. should have fair terms and conditions;
  • Avoid litigation by drawing the patient’s attention to any unusual risks involved in the treatment;
  • Warnings with regard to medical products or medicine should be clear and understandable, along with the instructions on how they should be utilised;
  • Healthcare professionals should meet the specific conditions agreed upon before or during the transaction. If not, the patient may ask that the defect be repaired or to be refunded a reasonable share of the price paid;
  • Prohibit over-booking practices, as the healthcare professional may be at risk to refund the patient.

Conclusion

In the relationship between the patient and the healthcare professional, the emphasis is on the healthcare professional’s responsibility to act with a fiduciary duty towards the patient. The word “fiduciary” originates from a Latin word meaning “faith”. To have a fiduciary duty is to have a duty of good faith, honesty and loyalty towards someone else with their best interests in mind. Since this relationship model between the patient and healthcare professionals shifted from the “paternalistic model” – the doctor as a decision-maker – towards the “mutual relationship model” that recognises patient autonomy, the onus on healthcare professionals to act with a fiduciary duty under the CPA has become greater and needs to be addressed accordingly.

Whilst the main focus of the CPA is on compliance, our approach at SERR Synergy is to implement compliance in such a way that it provides business value to our clients and allows for improvement in efficiency and effectiveness by meeting compliance requirements. We assist enterprises to conduct business in an ethical manner and to promote and protect the reputation of their businesses. 

About the Author: Monique Rossouw completed her B.Consumer Science degree at the University of Pretoria. She joined our team in July 2018 and currently holds the title of “Information Compliance Advisor”. She specialises in compliance with the Consumer Protection Act (CPA) as well as POPI and PAIA. This includes compiling legal compliance reports and developing policies along with the other assessment aspects relating to consumer protection legislation. She drafts and submits PAIA manuals to the Human Rights Commission and also compiles and implements Data and Information Protection Reports to identify risks associated with information security in each department of an organisation.

Sources:

https://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-14-15

Consumer Protection Act 68 of 2008

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