A ‘tale of institutional inefficiency, demonstrating the traumatic and adverse prejudicial impact on the well-being of a professional medical practitioner accused of unproven misconduct’ – Judge Van Den Bogert, in a ruling condemning the long delay by the Health Professionals Council of SA (HPCSA) in dealing with a complaint against a medical practitioner.
Blesset Nkambule, medico-legal consultant at Medical Protection, discusses the recent case against the HPCSA where a practitioner was the subject of a drawn-out complaints process.
Nkambule writes:
Complaints from the public directed to the Health Professions Council of South Africa (HPCSA) about the conduct of registered healthcare practitioners are a recognised and accepted eventuality of being regulated.
That said, this routine undertaking comes with a fair share of stress and anxiety for the practitioners who are the subject of the complaint. Furthermore, this undesirable impact can be compounded by a complaints process that is being unreasonably protracted by the HPCSA, which in all instances, unfairly prejudices the complainant and the respondent.
It therefore goes without saying that it would be in the best interests of all concerned, the complainants and the practitioners, for matters to be given due consideration and resolved expediently.
A recent judgment in a matter brought before the Gauteng High Court (Pretoria) against the HPCSA focused on the experience of a practitioner who was subjected to what seemed like a never-ending HPCSA complaints process.
The judgment highlighted not only the adverse prejudices meted out to affected healthcare by the bureaucracy within the HPCSA’s complaints process but also teaches us a valuable lesson in holding to account institutions like this – which are tasked with the responsibility of guiding professionals and protecting the public – when they do not fulfil their responsibilities appropriately.
This case signifies a victory achieved for a member assisted by Medical Protection and sets precedence for all registered healthcare practitioners.
In the opening statement of his judgment, the Judge Van Den Bogert dubbed the matter a “tale of institutional inefficiency, demonstrating the traumatic and adverse prejudicial impact on the well-being of a professional medical practitioner accused of ‘unproven’ misconduct” (1). This is a scathing introduction but fitting and necessary recognition of the impact of this matter on the practitioner involved as well as the failure of the HPCSA to uphold its statutory obligations in a rational manner.
Meet the regulator
The HPCSA is a statutory body established under the Health Professions Act (2). Its Complaints Handling Division is tasked with processing complaints received from the public against registered practitioners (3). This is in the regulator’s commitment to “protect the public and guide the professions”, a noble and necessary undertaking.
Registered practitioners are mandated to avail themselves to this complaints process or risk findings being made against them in absentia. These findings may have an unwanted consequence on their ability to practice legally in South Africa or to seek employment opportunities anywhere else in the world.
That is why at Medical Protection we encourage members to take seriously any complaints received from the HPCSA, and we assist them to respond appropriately and timeously to protect their professional interests.
The complaints process and impact on practitioners
In short, the natural course of a complaint at the HPCSA is for incoming matters, considered to be minor, to be mediated by the office of the Ombudsman and more serious matters to be subjected to a rigorous formal inquiry. The outcome may either be favourable and result in the practitioner’s explanation being accepted, or unfavourable, whereafter a sanction may be imposed, ranging from a caution or fine to suspension from practice.
The formal inquiry is a more costly and time-consuming process, because of the more involved process requiring evidence to be led and witnesses to be called and cross-examined – much like a court setting. Unfortunately, while formal, there seem to be endless unnecessary delays.
The process and prospective outcome can be a source of much anxiety to practitioners. So, when a serious complaint is brought against you as a practitioner, would you not want to “have your day in court” and see the matter finally brought to an end? What can you do if, through no fault of your own, the HPCSA delays in starting this formal inquiry process?
Next is the case which saw a member denied his “day in court” for many years, resulting in a High Court application aimed at compelling the HPCSA to fulfil its responsibilities.
Request for assistance
Medical Protection offers assistance to members who are the subject of an HPCSA complaint. In this instance, the member had been notified of a complaint against him in April 2008 by the HPCSA’s Complaints Handling Division, and Medical Protection panel lawyers had submitted a letter of explanation to the HPCSA on the member’s behalf in July 2008.
Unfortunately, despite the matter being deemed serious and requiring a formal inquiry – nine-and-a-half-years after that resolution was passed by the HPCSA, the council had still not held the formal inquiry. This delay was without obstruction from the member and persisted despite diligent follow-ups with the regulator by Medical Protection panel lawyers.
By 2021, a date for the formal hearing was still not forthcoming from the HPCSA. Medical Protection then instructed the panel lawyers to approach the HPCSA to attend to the matter, i.e. set a date and hold the inquiry as delay was prejudicing the member.
This with the condition that non-action on the part of HPCSA would result in a High Court application to compel it to act appropriately.
Unfortunately, the HPCSA did not respond and so the High Court application went ahead.
The High Court case
In February 2023, the Gauteng High Court (Pretoria) heard that a complaint alleging unprofessional conduct was brought against the member at the HPCSA in 2008.
The member had denied being guilty of unprofessional conduct as charged by the HPCSA’s Committee of Preliminary Inquiry but was not afforded an opportunity to defend himself at a formal inquiry. This because the inquiry had been delayed by the HPCSA professional conduct committee for seven years; 13 years after the complaint was first lodged.
The court heard that the HPCSA had still not begun proceedings, despite the loss of substantial supporting evidence as well as evidence in defence.
The court also heard that during this significant delay, a series of correspondence by the member’s legal representatives directed at the HPCSA requesting a set down date had yielded no tangible outcome other than multiple postponements and inadequacies related to the HPCSA securing evidence to prove their case.
All the while the member’s frustration and anxiety continued.
After an unsuccessful defence by the HPCSA, the court ordered that the complaint against the member be permanently set aside and that all existing disciplinary proceedings related to the complaint be terminated.
Learning points
Complaints handling by the HPCSA are a necessary measure to hold registered practitioners accountable to the public they serve. This is a statutory obligation for the HPCSA. Medical Protection advises practitioners to respond appropriately and timeously to notices of complaint from the HPCSA.
The HPCSA should not unreasonably subject practitioners to undue harm and adverse prejudice in their complaints processes. Everyone has the constitutional right to administrative action that is procedurally fair. In that regard, the HPCSA will be held accountable for its administrative failures and also risk the setting aside of complaints brought before it.
1. Aslam v President: Health Professions Council Of South Africa and Others (34380/2021) [2023] ZAGPPHC 227 (3 April 2023) para 1.
2. Health Professions Act 56 of 1974. Sec 2(1).
3. Legal and Regulatory Affairs – HPCSA
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