Last week South Africa plunged down the rabbit hole of Critical Race Theory (CRT), which colleague Anthea Jeffery lucidly describes as ‘…an anti-capitalist ideology that mobilises around racial identity to polarise and divide, exaggerates the importance of racism, and blames “white supremacy” for all black-white disparities’.
This rabbit hole is an ‘Interim Report’ published by a panel established in terms of Section 59 of the Medical Schemes Act, 131 of 1998.
Section 7 provides that the function of the Council for Medical Schemes is to:
(a) protect the interests of the members at all times; and …
(d) investigate complaints and settle disputes in relation to the affairs of Schemes;
To this end the council established an independent investigation panel to conduct an inquiry into allegations that schemes racially discriminate against black healthcare providers and that black providers were being treated procedurally unfairly.
The panel members are Advocate Tembeka Ngcukaitobi SC, who chaired the panel, Advocate Adila Hassim and Advocate Kerry Williams.
The complainants are Solutionist Thinkers Group and the National Health Care Professionals Association (not to be confused with the statutory Health Professions Council of South Africa). Both assist black and Indian private healthcare practitioners who are aggrieved by the phenomenon of racial profiling by medical aid schemes.
Every scheme implicated in the complaints denied that there was unfair racial discrimination in their fraud, waste and abuse (FWA) investigation processes. The denials were based on the fact that FWA investigations are triggered by either:
8.1 an automated system, underpinned by an algorithm, that flags outlier practices for investigation; or
8.2 tip-offs and whistle-blowers.
The schemes argued that only practice numbers are known by the automated system and there is no assignment or identification of race either explicitly or implicitly in the system.
The panel found that between 2012 and 2019, back practitioners were more likely to be found to have committed FWA than their ‘Non-Black (White)’ counterparts by Discovery, Medscheme and the Government Employees Medical Scheme (GEMS). It said ‘(this) means there was unfair racial discrimination’.
The panel did not find evidence of explicit racial bias in the algorithms and methods that the administrators and schemes use to identify FWA.
Using the data provided to the panel by Discovery, GEMS and Medscheme, Dr Zaid Kimmie, a ‘mathematics, statistics and data analyst’, found that there was a substantial difference in FWA outcomes between black and ‘non-black’ practitioners over the period January 2012 to June 2019.
‘Over this period, across all disciplines and the aforementioned three schemes and administrators, Black practitioners were 1.4 times more likely to be classified as having committed FWA than those identified as not Black.’
Expert evidence
The three schemes and administrators presented expert evidence to contest the findings of Dr Kimmie, but the panel found that the disproportionate impact on black providers did amount to unfair racial discrimination.
The panel also found that
1. The probability that this distribution occurred by chance (i.e. that there is no correlation between racial status and FWA outcomes) is ‘for all practical purposes’ zero;
2.1 Black general practitioners are 1.5 times more likely to be identified as FWA cases than their ‘non-Black’ counterparts;
2.3 Black physiotherapists, 1.87 times;
2.4 Black psychologists, three times;
2.5 Black counsellors and social workers, three times. More than 50 percent of Black registered counsellors have been identified (this is the highest rate analysed); and
2.7 Black dieticians, 2.5 times.
According to the panel, Discovery was 35% more likely to identify black providers as having committed FWA, GEMS was 80% more likely to identify black providers and Medscheme was 330% more likely to identify black providers as guilty of FWA.
Due to space constraints, this article will not analyse the procedures considered by the panel.
The panel concluded in summary:
- Some of the current procedures followed by the schemes to enforce their rights are unfair;
- Black providers are unfairly discriminated against on the grounds of race;
3. Unfair treatment was not deliberate; the unfair discrimination is in the outcomes. ‘Our Constitution regards the form of unfairness that we have found to exist as constituting unfair racial discrimination.’
4. It had no power to find anyone guilty or to investigate each individual claim ‘(but) we would be failing in our duty if we ignored the degrading, humiliating and distressing impact of racism against the individuals who testified before us. A part of our function was to provide a platform for the expression of individual experiences of racial discrimination and other forms of unfair treatment.’
5. ‘… But we have received sufficient data and information to make informed and reliable conclusions of the patterns of conduct by the schemes. In certain respects, our conclusions – which are evidence-based – accord with individual experiences. Affirming these individual experiences as fact has been an essential element of the work of the Panel, confirming that the majority of the complaints were not frivolously made. Nkosi sikelel’ iAfrika’
Preliminary observations
Certain preliminary observations can be made, bearing in mind that we don’t have access to the evidence at this stage:
- the schemes’ function is to protect its members’ interests at all times: in other words the schemes’ primary concern is its members and how they are treated by doctors;
- Ironically, the absence of statistics as to the racial breakdown of doctors in the country makes mathematical analysis difficult;
- Schemes analyse the data they receive on the charging and prescribing habits of doctors in each field, assess what may amount to excessive charging and formulate an algorithm to identify doctors who contravene the norm. This is to assist schemes in ensuring that members are not overcharged and ensuring that the schemes do not have to refund members more than is the norm;
- GEMS is the government employees’ medical aid. Presumably the vast majority of its members are black and they consult black doctors. Is it likely to be guilty of racism by identifying 80% of FWAs among black doctors?
The panel finds that the racism black doctors are experiencing is not by intent. The racism occurs even though no records are kept of doctors’ race. This is contradictory because racism is only racism if it is conscious. In framing it as ‘racism’ the expected result was that the media headlines were predictably shrill.
The questions that arise include:
- Is it racist merely by the fact that more black doctors offend FWA than white with no reference to the actual facts?
- Is it non-racist to benefit people in terms of demographics, but racist when demographics are to a group’s disadvantage?
- If the algorithms are acceptable, how are they discriminating unfairly against blacks? If discrimination is happening, then surely the algorithms would either be flawed, or harsher criteria are being used against black practitioners than white.
At the launch of the report, the Gauteng Manager of the SA Human Rights Commission, Bonang Jones, slammed schemes over the admission that they don’t know the racial demographics of the healthcare practitioners on their networks.
Jones said: ‘Understanding our historical context‚ South Africans were segregated along racial lines. If you want to transform the industry‚ you still have to ascertain how many people are benefiting from our network.
‘How many practitioners? How many females? How many black‚ coloured‚ Indian people are there in our network?’
Extraordinary
This is extraordinary; an absence of statistics based on race is racist. Jones is also hinting, by omission, that a benefit is not racist but a detriment is racist by being a negative. Jones also says that it is racist not to apply racial criteria.
Critical race theory is thriving in South Africa.
Move over, Alice! Wonderland has nothing on the land of CRT. Hopefully the final report will provide clarity.
[Picture: Haley Lawrence on Unsplash]
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