A leading orthopaedic surgeon who emigrated to South Africa but for more than seven years couldn’t get the Health Professions Council to accept his foreign qualifications, scored an important victory in the High Court (Pretoria), writes MedicalBrief. The HPCSA — which failed to defend the action — must not only decide on his registration within 90 days but, as measure of judicial displeasure, punitive costs were awarded against it and two top officials.
Judge David Makhoba granted the application of Swiss orthopaedic surgeon Dr Markus Michel, now a permanent resident in South Africa, ordering the HPCSA and the Medical and Dental Professions Board to resolve his application for professional registration, which has been stalled since 2013. The costs order, on attorney-client scale, was granted against the HPCSA, the Board, Dr Tebogo Letlape (former head of the HPCSA) and the MDPB chief administrator, Nkululeko Ntloko.
The HPCSA and other respondents did not contest the application, nor lodge any defence in the matter.
The ruling will encourage the many foreign-qualified medical practitioners and specialists who have struggled for years to have their qualifications recognised by the HPCSA. Many doctors, said an advocate with experience of such cases, simply give up. The loss of rare expertise to South Africa is “incalculable”, she said.
“It's not only about incompetence or bureaucratic rigidity,” she added. “One gets a sense that behind it lies a real antipathy at the HPCSA towards foreigners, a xenophobia about them taking South African jobs, which is ridiculous given the levels of skills we are talking about and the shortage of these skills in South Africa.”
Michel's application argued that the HPCSA's failure to decide on his application was a violation of the constitutional rights to freedom of trade and occupation, to equality and to the protection of the rule of law.
In his affidavit, Michel said he had resorted to the courts because of the “intransigence, incompetence and indifference” of the HPCSA, the Board and its officials, over seven years of trying to register. He said not only had he met “all the applicable legislative requirements for registration” but the HPCSA and Board “had never seriously disputed the veracity or quality of my qualifications, training or experience” .
Michel, who qualified in Switzerland and is a South African permanent resident with a home in Paarl, emigrated to South Africa in 2012 on an “exceptional skills” visa issued by the Department of Home Affairs. His qualifications were certified by the SA Qualifications Authority, the statutory qualifications oversight body.
Michel was a research fellow at the Massachusetts Institute of Technology and Harvard University and has authored more than 20 journal articles, as well as presented papers at international conferences. He has for the past 15 years consulted on tissue-sparing hip surgery, has conducted teaching surgeries all around the world, and is a member of the orthopaedic surgeon associations of Switzerland, Germany, the United States and South Africa. He is the founder of several orthopaedic and orthopaedic sports clinics in Switzerland, headed the orthopaedic department of the Bern hospital network, and is the founder of the Swiss Joint Foundation.
Michel said in the affidavit that as a qualified doctor and surgeon he had more than 30 years of experience and had met “all the applicable legislative requirements for registration”, but that the applications he had made, starting in November 2012, had not been decided upon despite meeting all requirements and providing all possible documents.
Michel's struggle to satisfy the HPCSA's is detailed over 30-pages of affidavit, supported by almost 100 annexures of correspondence with the HPCSA's officials. After his initial application, he was forced to resubmit his application anew a further three times.
“I diligently responded in detail and with supporting documents to innumerable information and document requests. I and many other on my behalf, including eminent South African specialist medical professionals and academics have engaged unendingly with officials of the HPCSA and the Board We have simply been shunted from pillar to post and have been faced with the worst bureaucratic stonewalling and obstruction.”
Michel spoke to MedicalBrief from Portugal, where he is currently, and said that many foreign-qualified doctors have had to throw in the towel in trying to get HPCSA registration because the costs are enormous, both financially and emotionally.
“The direct legal costs have been close to R400,000 and I know that my lawyers did not bill us for many hours that they worked on our case. I was fortunate enough to make my living without being registered in SA due to my international reputation and connections.
“It’s difficult to assign a number to the emotional burden but it was enormous, because we emigrated to South Africa with a completely different plan. But when I couldn't get registration, in order to make a living I started running a clinic in Zurich and, at the same time, increased my international engagement, alway hoping that this would only be for a rather short period of time. I never thought that I would be commuting between South Africa and Switzerland for more than 7 years.
“But giving up was never a real option. We, our whole family simply fell in love with South Africa, there is just no place on the globe that touches your soul as much.”
Michel had offered to work pro bono as a specialist consultant at Tygerberg Hospital in Cape Town, while also setting up a unit at Mediclinic. “When we finally moved to SA we thought that it would only take a couple of weeks to get my registration. And although we kept submitting application after application, the HCPSA neither really had a closer look at my case nor did I get any substantial feedback.”
“During this time I tried to support my colleagues in SA, mainly by holding educational courses together with the SA medical industry, but also by teaching my colleagues directly. In the meantime, many surgeons in SA are successfully using my technique for hip replacements. This allows them to treat patients not only in a minimal invasive way but also shortens their recovery time significantly.”
Michel said that over the seven years he had seen “very strange things happening with regards to a registration with HCPSA”. “I’ve seen excellently educated people – like a South African professor for orthopaedic surgery who had lived and worked in the UK for 20 years struggling to get registered again after coming home. But I have also seen completely uneducated surgeons in my courses who got full registration from HCPSA in less then three months. It is very worrisome to see that the registration doesn’t seem to go together with the qualification.”
Advocate Peter Smith was the advocate on brief for Michel and Malan Scholes Inc, led by Hulme Scholes, were the instructing attorneys.
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