High Court expresses doubt that ‘nonchalant’ HPCSA is fit for purpose

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The continued inability of the Health Professionals Council of SA (HPCSA) to timeously register foreign-qualified medical practitioners has led to another judicial tongue lashing, writes MedicalBrief. A High Court judge as described the HPCSA’s conduct as “despicable” and “nonchalant”, raising questions as to whether HPCSA was “fit for purpose”.

Gauteng High Court (Pretoria) Judge Nelisa Mali was delivering judgment in an unopposed application brought by Russian-qualified dentist Ksenia Kholina against the HPCSA and the Minister of Health. It is the most recent of a string of adverse and highly critical judgments against the HPCSA over its treatment of foreign-qualified medical practitioners seeking to obtain registration.

Mali writes in her judgment: “The prejudice suffered by the applicant in the hands of a professional body founded in the constitution is despicable. It is common cause that South Africa has a shortage of medical practitioners. Here we have a young dentist eager to contribute her hard earned skills; sadly, the body tasked to assist her to ply her trade is nonchalant. One is left wondering whether the first respondent is fit for purpose.”

Costs were awarded against the HPCSA.

Kholina was born in 1991 in the then Soviet Union, now the Russian Federation, and emigrated to South Africa with her family when she was a toddler. Raised in a family of medical doctors, Kholina matriculated in SA and enrolled at a Russian university.

In 2016 Kholina was awarded a Specialist Degree Diploma of Doctor of Dental Medicine. She was also awarded with a Russian Federation Specialist Accreditation Certificate, which "fully and completely accredited" her to carry out medical activities in respect of the dentistry in the territory of Russia in accordance with the accreditation procedure for the Speciality of General Dentistry.

She submitted to the HPCSA in January 2017 all documents required to register as an accredited dentist in SA. She was told in April 2018 that her Russian university degree had been verified and she could proceed to write the board exams.

Kholina completed these between June and July 2019. While she passed the written exams, she was informed that she would have to repeat the practical.

According to Kholina's founding affidavit her qualification as obtained from the University has been accepted by the first respondent as an accredited institution. The process of accreditation as detailed in the founding affidavit was not in dispute.

Judge Mali writes:

On 16 May 2018 , the applicant received correspondence from the first respondent's officer, Ms Wood that she would be advised as to when the examination fee was due once the first respondent received the date for the examination. On 6 June 2018, Ms Wood further communicated that she had not received confirmation from the University regarding the date for the examination.

On 7 June 2018, again through Ms Wood the applicant was informed that the first respondent was busy with negotiations with the University of the Witwatersrand to host the 2018 examination. On 25 June 2018, Ms Wood sent two letters to the applicant the first, that the examination would be held in Johannesburg. The second correspondence indicating that the examination may be held between August and September 2018.

On 20 July Ms Wood writes to the applicant again, stating that there was going to be a meeting in the beginning of August 018 and that she may have dates for the examination confirmed. On 23 August 2018, Ms Wood communicated that the examination would take place during the last quarter of 2018 or first quarter of 2019.

From 23 August 2018 to 7 March 2019 a flow of correspondence from Ms Woods continued without any confirmation of dates for the examination as the HPCSA was waiting for details from the University.

Eventually on 8 April 2019 the applicant was informed by the respondent that various parts of the Examination had been scheduled to take place on 31 May 2019, 1 June 2019, and 13 and 14 June 2019 respectively. Finally, on 31 May 2019, and 1 June 2019 the applicant sat for Part 1 and Part 2 of the examination.

On or about 5 June 2019 the first respondent advised her that she had successfully passed both Part 1 and 2 and was invited to participate in Part 3 thereof. Part 3 Practical Assessment was to be held over two days on 13 and 14 June 2019.

She participated in same and on or about 17 July 2019, the first respondent communicated to the applicant that she did not pass three of the four sections to the Practical Assessment. On 22 July 2019 she was advised that she would re-write Part 3 of the Examination.

From 17 July 2019 to 20 February 2020 the applicant found herself again faced with the same struggle pertaining to non-confirmation of dates for the Part 3 Examination. It was on 17 March 2020 when the first respondent's Ms Ndlala communicated that due the Corona Virus pandemic which resulted to closure of Universities the first respondent had no certainty as to whether the Examination would be put on hold.

On or about 24 March 2020, the first respondent published a notice on its website, to the effect that no board examinations will be conducted during the Lockdown Period.

Due to the ongoing uncertainties the applicant instructed her attorneys to send a letter of demand, that the first respondent set a date for the examination during 2020. The first respondent did not comply with the demand and instead on 7 September 2020 the first respondent communicated as follows;
"the Board is not in a position to announce a date at the moment".

In the light of the aforesaid communication from the first respondent, on 5 October 2020 , the applicant's attorneys, transmitted a further letter to the first respondent demanding that the applicant be exempted from writing Part 3 of the Examination.

This is because she had already completed the Russian Federation Specialist Accreditation and have been issued with a Certificate in respect thereof. The certificate is evidence that the applicant had been fully accredited to carry out medical activities in respect of dentistry territory of Russia, in accordance with the accreditation procedure for the Speciality of General Dentistry. True to the style of the first respondent, there was no reply to the above demand; hence this application.

The issue to be determined is whether the failure of the first respondent to make a decision to set a date for examination and or exempt the applicant from writing Part 3 of the examination is reviewable.

The applicant seeks an order to in the following terms:

"1.1. to review the decision of the first respondent for failure to have made any decision on the Applicant's application to be exempted from Part Ill of the requisite examination for Foreign Qualified Medical Practitioners in accordance with paragraph 1.2, Part Ill of the Health Professions Council.

1.2. To furnish the Applicant with all necessary information to facilitate the Applicant's Supervised Practice for a period of 12 (twelve) months, in terms of paragraph 1.3 of the Guidelines

2. Declaring that the Applicant be exempted from Part Ill of the requisite examination for Foreign Qualified Medical Practitioners in accordance with paragraph 1.2, Part Ill of the Guidelines;

3. Compelling the First Respondent to furnish the Applicant, within a period of no more than 30 (thirty) days from date of grant of this Order, with all necessary information to facilitate the Applicant's Supervised Practice for a period of 12 (twelve) months, in terms of paragraph 1.3 of the Guidelines;

4. In the alternative to 2 and 3 above, directing the First Respondent [HPCSA] to set a date for the undertaking of Part Ill of the requisite examination for Foreign Qualified Medical Practitioners, within 30 (thirty) days of this Order being granted…

As seen above, the applicant began pursuing first respondent for the dates of examinations from 22 July 2019 when she was advised that she would re-write Part 3 of the Examination. This was long before Covid 19 pandemic hit the whole world.

The court is placed in awkward position by the non-participation of the first respondent in these proceedings. The court is not enlightened as to the reason for non-communication of the Part 3 Examination dates. One is left reading between the lines; that the reason might be the failure of the University to set the examination and or issue dates of examination. This exercise is not legally permissible.

Even if one takes into account the instabilities brought about by the pandemic, there is no regulatory provision prohibiting the first respondent from setting a date for the Examination. Life goes on within the set parameters in relation to the State of National Disaster guidelines in the country … It is clear that the board should take a lead in the setting of the dates. It is the responsibility of the [HPCSA] to set the date of examination in collaboration with the relevant dental school. The [HPCSA} should lead, and cannot shrug responsibility to the dental school.

The prejudice suffered by the applicant in the hands of a professional body founded in the constitution is despicable. It is common cause that South Africa has a shortage of medical practitioners. Here we have a young dentist eager to contribute her hard earned skills; sadly, the body tasked to assist her to ply her trade is nonchalant. One is left wondering whether the first respondent is fit for purpose.

From the above, it is concluded that the non-action of the first respondent to take a decision to set a date for the undertaking of Part Ill of the requisite examination for Foreign Qualified Medical Practitioners, should be reviewed and set aside. In the result the application succeeds.

Turning to the appropriate order, the doctrine of separation of powers precludes the courts from impermissibly assuming the functions that fall within the domain of the executive. The courts cannot be seen not observing the sacrosanct doctrine of separation of powers. It is therefore not permissible to grant the main prayer of the applicant, to declare that the Applicant be exempted from Part Ill of the requisite examination for Foreign Qualified Medical Practitioners in accordance with paragraph 1.2, Part Ill of the Guidelines. To do so the court would be encroaching on the domain of the functionary, the first respondent.

The following order ensues:

ORDER

1. The First Respondent is ordered to set a date for the undertaking of Part Ill of the requisite examination for Foreign Qualified Medical Practitioners, within 30 (thirty) days of this Order being granted;

2. The First Respondent is ordered to pay Costs of this application.

 

Full Gauteng High Court (Pretoria) judgment (Open access)

 

See also from the MedicalBrief archives:

 

UCT neuropsychologists win a small victory against HPCSA

 

Fresh criticism of 'dysfunctional' HPCSA after Ramdhin debacle

 

HPCSA rapped over 7-year delay in accepting top Swiss surgeon's qualifications

 

Gynae with 'history of misconduct' benefits from HPCSA 'bungle'


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