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Charging for foreign patients

Harry Waalkens QC looks at the practice of charging differential fees for foreign patients – and how this can lead doctors into inadvertent breaches of human rights law

The long arm of the law can have far-reaching consequences even for those who inadvertently breach its provisions. This is particularly so in the area of human rights discrimination.

This article reviews an area of medical practice that can lend itself to complaints of breach of the Human Rights Act 1993 (“the Act”) and its anti-discriminatory provisions – in particular, we look at the practice of some medical centres that charge a higher fee for foreigners.

A case of discrimination?

A case that recently highlighted this involved a French student who was injured in a rugby match and required treatment by the local Accident & Emergency Medical Clinic. In keeping with its fee practices, the clinic charged him $98, whereas a New Zealand citizen or resident in comparable circumstances would have been charged $58. The student queried the increased charge. The clinic explained it justified this difference of fees because foreigners often take longer to consult or treat, due to language and other practical difficulties, such as locating the patient’s prior medical history.

The clinic also said its policy of charging foreigners a higher fee did not include travellers rom the UK or Australia because of the reciprocal health agreement that New Zealand has with those countries. The question that emerges is whether or not the clinic’s fee structure practice is a breach of the Act, albeit an inadvertent or unintended one.

The Act: a closer look

The starting point is Section 21 of the Act. It lists those acts of discrimination that are prohibited – that is to say, not every act of discrimination (where one group of people is treated differently from another) is unlawful unless it is listed therein as a prohibited ground of discrimination.

Discrimination or difference in treatment based on ethnic or national origin (which is said to also include nationality or citizenship) is one such prohibited ground. There are others, such as the more common ones of sex, race, colour or religious belief.

Section 44 of the Act then makes it unlawful for any person (in this case the clinic) to supply services to the public, or any section of the public, whereby a person(s) is treated less favourably in connection with the provision of those services than would otherwise be the case “by reason of” any of the prohibited grounds of discrimination referred to in Section 21.

Undoubtedly on the facts of the above case, the clinic was indeed treating the French student less favourably (by charging him a higher consultation fee) for the provision of accident medical services than would otherwise be the case for a New Zealand national, or even a resident of Australia or the UK. What then of the justification raised by the clinic in response to the fee policy it has adopted?

The Act does provide statutory exceptions or excuses for conduct that would otherwise be unlawful and discriminatory. For example, the Act does permit differential charging where the fee being charged is a reduced one, based upon age, disability or employment status. Accordingly, the clinic would be quite entitled to charge a lower rate for students or retired persons or others who may be unemployed.

But for the statutory exception provided in this regard, such a differential fee practice would be prohibited as unlawful discrimination. There are, however, no other statutory exceptions that apply, which would come to the aid of the clinic in the subject case

The Act does provide statutory exceptions or excuses for conduct that would otherwise be unlawful and discriminatory

Legitimising the policy 

The clinic could, however, very easily amend its fee policy to remove the unlawful discriminatory component. For example, it could be amended to enable the fee charged to reflect the duration of the consultation. Accordingly, for those foreigners who do have language problems (hence requiring a longer consultation) this would not be discriminatory “by reason of” ethnic or national origin, but rather because their consultation will take longer. That assumes all persons, including those who are New Zealand residents who have language or other difficulties, thereby requiring a longer consultation, would all be charged on the same basis.

Recognising that funding availability in clinical practice, least of all primary care, is itself a complex topic – where different people may be entitled to different contributions or subsidies towards certain treatments – the clinic could also adopt a fee policy based upon the availability of subsidies or other fee contributions for eligible people. In such a way, that would indeed pay legitimate regard to the existence of any reciprocal health agreement between New Zealand and other countries.

Conclusion

Those who operate services, including medical practitioners, are bound to comply with the Human Rights Act and its provisions. Inadvertently policies may unlawfully discriminate on one of the prohibited grounds, including ethnic or national origin, or one of the other grounds such as disability, age or employment status.

Practitioners should take care to evaluate their fee structures and other practices to ensure that no discrimination occurs

Practitioners should take care to evaluate their fee structures and other practices to ensure that no discrimination occurs by reason of one of the prohibited grounds of discrimination.

Unlawful conduct may occur even where the practitioner has no intention of so acting. Indeed, the Act also provides a long reach of the law where “indirect” discrimination may occur. That is where the policy in question has the effect of treating the patient differently on one of the prohibited grounds of discrimination unless the practitioner can establish good reason for the policy.

Unlawful discrimination is something of a minefield, through which practitioners should tread gently and with great care.
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