Govt loses medical aid case

A MEDICAL doctor whose one-man practice at Katima Mulilo earned more than N$7 million from the Public Service Employees Medical Aid Scheme (PSEMAS) in 2004 yesterday won a significant court victory in his fight against the Finance Ministry’s decision to cancel his service provider agreement with PSEMAS.

The agreement that allowed Dr CMJ (‘Kinnie’) Ward to claim directly from PSEMAS for services his practice provided to members of the Government medical aid scheme was suspended by the Ministry of Finance’s Permanent Secretary, Calle Schlettwein, at the end of May 2005, and thereafter terminated on September 6 2005. Yesterday, though, High Court Judge Louis Muller declared these decisions null and void, and set them aside.Judge Muller at the same time ordered that the Finance Ministry should now pay Ward – whom Schlettwein accused of having “made himself guilty of fraud and/or dishonesty and engaged in dishonest business practice” – more than N$1,32 million, which Ward has been claiming from PSEMAS for close to three years.Judge Muller further ordered that a decision that Schlettwein took on September 6 2005 to demand that Ward repay more than N$5,77 million to PSEMAS, be set aside.The judgement comes two years and five months after Ward lost a first round in his battle against the Finance Ministry’s decision to end his service provider agreement with PSEMAS.An urgent application by Ward to have that decision overturned was dismissed in the High Court in mid-September 2005, when it was ruled that Ward had not been able to prove that his case met the requirements to be heard as a matter of urgency.At that stage the Finance Ministry accused him of dishonesty, greed, fraud and practising “conveyor-belt medicine”, after he had earned some N$7,058 million from PSEMAS alone during 2004.Ward responded to these accusations by stating that these statements from the Ministry were seriously harming his reputation, and that he was being blamed for the fact that the vast majority of PSEMAS patients in the Caprivi Region preferred to use his health care rather than that of the only other private doctor who was practising in the region at the time.According to the Ministry, an investigation of the claim patterns of Ward’s practice showed that an average visit by a PSEMAS member to Ward cost the scheme some N$503, whereas the average visit to a general practitioner in Namibia at that stage cost a patient about N$351.A fellow medical doctor, who helped the Ministry to investigate Ward’s practice, calculated that the average consultation time per patient at Ward’s practice was a little over three minutes – “conveyor-belt medicine”, in that doctor’s opinion.In the case that Ward subsequently pursued in the High Court against the Finance PS, the Minister of Finance and the Prime Minister, Ward based his attack against the decision to terminate his service provider agreement with PSEMAS, in the main on an alleged failure by the Ministry to have given him a chance to at least explain himself before the decision was taken.In reply to Ward’s application to have the decisions by Schlettwein reviewed and set aside, the PS, Finance Minister and Prime Minister claimed that those decisions were not administrative decisions that could be reviewed, but were merely the exercise of a contractual right to suspend and cancel the service provider agreement on the basis of fraud and dishonesty.Judge Muller however found that Schlettwein “clearly acted from a position of superiority or authority deriving from his public position and his decisions do amount to an exercise of public power”.The Judge also did not agree that the conduct of the Finance PS and the Minister of Finance towards Ward could be described as reasonable or fair.Ward should have been given an opportunity to be heard before the decisions that could – and did – have such an adverse effect on him and his practice were taken, Judge Muller ruled.If Ward had been afforded a hearing before those decisions were taken, he would have had an opportunity to put his evidence before the relevant tribunal and may, or may not, have persuaded the tribunal to arrive at another decision, the Judge stated.Judge Muller also ordered that the Finance PS and Minister should pay Ward’s legal costs in the case, which was heard on October 29 last year.Herman Oosthuizen, instructed by the law firm Engling, Stritter & Partners, represented Ward.Deputy Government Attorney Nixon Marcus represented the PS, Minister and Prime Minister.Yesterday, though, High Court Judge Louis Muller declared these decisions null and void, and set them aside.Judge Muller at the same time ordered that the Finance Ministry should now pay Ward – whom Schlettwein accused of having “made himself guilty of fraud and/or dishonesty and engaged in dishonest business practice” – more than N$1,32 million, which Ward has been claiming from PSEMAS for close to three years.Judge Muller further ordered that a decision that Schlettwein took on September 6 2005 to demand that Ward repay more than N$5,77 million to PSEMAS, be set aside.The judgement comes two years and five months after Ward lost a first round in his battle against the Finance Ministry’s decision to end his service provider agreement with PSEMAS.An urgent application by Ward to have that decision overturned was dismissed in the High Court in mid-September 2005, when it was ruled that Ward had not been able to prove that his case met the requirements to be heard as a matter of urgency.At that stage the Finance Ministry accused him of dishonesty, greed, fraud and practising “conveyor-belt medicine”, after he had earned some N$7,058 million from PSEMAS alone during 2004.Ward responded to these accusations by stating that these statements from the Ministry were seriously harming his reputation, and that he was being blamed for the fact that the vast majority of PSEMAS patients in the Caprivi Region preferred to use his health care rather than that of the only other private doctor who was practising in the region at the time.According to the Ministry, an investigation of the claim patterns of Ward’s practice showed that an average visit by a PSEMAS member to Ward cost the scheme some N$503, whereas the average visit to a general practitioner in Namibia at that stage cost a patient about N$351.A fellow medical doctor, who helped the Ministry to investigate Ward’s practice, calculated that the average consultation time per patient at Ward’s practice was a little over three minutes – “conveyor-belt medicine”, in that doctor’s opinion.In the case that Ward subsequently pursued in the High Court against the Finance PS, the Minister of Finance and the Prime Minister, Ward based his attack against the decision to terminate his service provider agreement with PSEMAS, in the main on an alleged failure by the Ministry to have given him a chance to at least explain himself before the decision was taken.In reply to Ward’s application to have the decisions by Schlettwein reviewed and set aside, the PS, Finance Minister and Prime Minister claimed that those decisions were not administrative decisions that could be reviewed, but were merely the exercise of a contractual right to suspend and cancel the service provider agreement on the basis of fraud and dishonesty.Judge Muller however found that Schlettwein “clearly acted from a position of superiority or authority deriving from his public position and his decisions do amount to an exercise of public power”.The Judge also did not agree that the conduct of the Finance PS and the Minister of Finance towards Ward could be described as reasonable or fair.Ward should have been given an opportunity to be heard before the decisions that could – and did – have such an adverse effect on him and his practice were taken, Judge Muller ruled.If Ward had been afforded a hearing before those decisions were taken, he would have had an opportunity to put his evidence before the relevant tribunal and may, or may not, have persuaded the tribunal to arrive at another decision, the Judge stated.Judge Muller also ordered that the Finance PS and Minister should pay Ward’s legal costs in the case, which was heard on October 29 last year.Herman Oosthuizen, instructed by the law firm Engling, Stritter & Partners, represented Ward.Deputy Government Attorney Nixon Marcus represented the PS, Minister and Prime Minister.