As the sole regulatory body for doctors in the country, the Health Professions Council of South Africa is the only institution that can hold medical practitioners accountable and protect patients from misconduct, but, say Khuliso Managa and Senamile Madlala in Daily Maverick, it is failing in its duty.
The HPCSA was established in 2000 as a regulatory body to determine standards of ethical and professional practice for registered health practitioners. It also has the power to institute disciplinary proceedings, in accordance with the rules set by its Professional Board.
In line with these powers, it may convene a committee of inquiry and investigate complaints lodged against a healthcare professional, the proceedings carrying the same weight in law as that of magistrates’ courts.
Depending on each case, the HPCSA can caution or reprimand; impose a fine between R1 000 and R70 000; prescribe community service; suspend for a period; or remove the person from the register of health professionals, and in essence, prevent a member from practising medicine in South Africa.
The organisation should not take this responsibility lightly, in a country where widespread systematic dysfunction, especially in our public healthcare system, leaves patients at a disadvantage and vulnerable to abuse, negligence and malpractice.
Given the state of our healthcare sector overall, it has never been more essential for the HPCSA to fulfil its mandate and carry out its functions in a manner that instils confidence in its members and the public.
Legal services in disarray
As part of the work done by the Women’s Legal Centre (WLC) in ensuring women’s rights to sexual reproductive health, we have been monitoring the HPCSA since a ministerial task team was appointed in 2015 to investigate reports of widespread dysfunctionality. Yet it appears that since 2015 very little has changed.
The task team’s report of 2015 noted that the HPCSA was failing to carry out its statutory mandate across its five functions of:
1. registration of health professionals;
2. examination and recognition of qualifications of practitioners;
3. professional conduct enquiries;
4. approval of training schools; and
5. continued professionals’ development.
Investigations into the state of professional conduct inquiries at the HPCSA found its legal services were severely dysfunctional, mismanaged, and maladministered.
They were also often encumbered by irregularities and undue delays, prejudicing all parties involved in their proceedings. Several recommendations were made by the task team to remedy the problems, but more than seven years later, the same issues are presenting themselves.
Bungled justice: the case of Dr Ganes Anil Ramdhin
In July 2020, the WLC, acting on behalf of Zoleka Helesi, a now-deceased theatre performer, submitted a complaint wherein we detailed the horrific experience that culminated in her death. The complaint was lodged against Dr Ganes Anil Ramdhin, an obstetrician and gynaecologist operating a medical practice from Khayelitsha in Cape Town.
At the time, Helesi was frustrated by the lack of communication and lengthy waiting period from the HPCSA.
This initial administrative bungling of her complaint was then followed by a pattern of maladministration, mismanagement and undue delays that accumulated in the withdrawal of preliminary suspension proceedings in 2021.
Due to procedural irregularities by the HPCSA itself, it could not proceed with the suspension of Ramdhin and due to its misconduct in handling Helesi’s complaint, he could continue to practise medicine despite facing serious charges of misconduct and having been found guilty of misconduct on other occasions by the HPCSA.
After the precautionary suspension hearing was abandoned in February 2021, the matter was then referred to another HPCSA professional board, and in December 2021, the HPCSA determined there were sufficient grounds for a professional conduct inquiry and that the matter should be heard before an HPCSA Professional Conduct Committee.
The matter was then postponed multiple times at the request of the still-practising Ramdhin, leading to an entire year of postponements that meant that for 2022, the Professional Conduct Committee made no progress and continued to allow the doctor – accused of causing the deaths of two women – to continue practising.
More than three years since the initial complaint was submitted and two years since Helesi died, the final hearing took place on 30/31 May 2023.
After considering the accused’s pleas of guilty to both complaints brought by Helsi and another victim, Beauty Mama, the Professional Conduct Committee found him guilty of unprofessional conduct and suspended him for just a year.
After that, he will be allowed to practice again. He will also be on probation for two years and must undergo rehabilitative training with an HPCSA-approved practitioner.
This ends the road to justice for Helesi and Beauty Mama, two women whose deaths have now been confirmed to have been caused by Ramdhin, and whose cases now form part of both a long list of women the HPCSA has failed and whose rights he was allowed to violate with devastating consequences.
Apart from showcasing the failures within the HPCSA, this case has also illustrated that the HPCSA, in its current manifestation, is not set up to provide justice for any victim.
Practitioner before patient
As it stands, its processes for investigations into complaints can only be deemed as not victim-centred, exploitative, unkind and traumatic to the very patients who dignity and bodily integrity has been violated.
The current system is designed to focus on and protect the rights of the accused – as a health practitioner and member of the HPCSA – rather than those of the victim.
In a sector where doctor-patient relationships already suffer from unbalanced power dynamics, where patients historically have less access to formal education and too often experience language and racial barriers in accessing healthcare, not enough is being done to create a more substantively equal process to handle misconduct by healthcare providers in a contextual manner that considers patients’ experiences.
Patients in the HPCSA’s process instead have limited rights, because apart from their initial submission detailing a rights violation, they are intentionally excluded from the case thereafter.
They are unable to determine what charges the medical practitioner faces, are not consulted in determining the content of the charge sheet or whether the practitioner is suspended pending the proceedings.
They are additionally not guaranteed a right to be present at the hearing, have no automatic right to be informed about the case’s progress, and may not even be called to give evidence, even though the complaint is based on their experience.
Unlike practitioners, patients are also not afforded a choice in legal representation throughout the proceedings, and may only observe the proceedings, having no rights to the evidence, to engage with the evidence, lead evidence or examine any witnesses.
In addition to this system being imbalanced and unwelcoming, concerns have also been raised over the conflicts of interest by HPCSA staff and conduct inquiry committee members, who are peers of the health professionals being investigated.
Punishments don’t fit crimes
The last, and perhaps most appalling issue, identified with the HPCSA’s processes, is the sanctions imposed as sentences by these committees. An evaluation of historical sanctions shows a pattern of sanctions that are inconsistent, disproportional, and lacking any real form of tangible punishment.
They do not serve as a deterrent and have instead, in addition to the other issues identified, made it easier for practitioners to abuse the system, allowing serial offenders like Ramdhin to continue offending without fear.
Powers that should be used to caution practitioners against misconduct and promote excellence in service delivery are now used to provide a slap on the wrist.
The fact that repeat offenders pose a particular risk to women in South Africa is clear and as highlighted by Ramdhin’s case, and women from lower-income communities will continue to be particularly vulnerable.
Women’s bodies and lives – and black women’s bodies and lives in particular – appear to be dispensable to the HPCSA, and greater intervention is needed urgently to restore faith in our healthcare system and practitioners.
As WLC, we remain committed to and focused on challenging regressive measures aimed at controlling women’s bodies and hindering their ability to make informed choices.
Khuliso Managa is an attorney at the Women’s Legal Centre based in Cape Town and works in their Sexual and Reproductive Health Rights focus area. Senamile Madlala obtained her LLB from Stellenbosch University and is a candidate attorney, working in the area of sexual and reproductive health rights.
See more from MedicalBrief archives:
Fresh criticism of ‘dysfunctional’ HPCSA after Ramdhin debacle
HPCSA misconduct hearing for doctor with previous charges, suspensions
High Court expresses doubt that ‘nonchalant’ HPCSA is fit for purpose
Gynae with ‘history of misconduct’ benefits from HPCSA ‘bungle’