The Health Professions Council of South Africa (HPCSA) continues to punish doctors with hefty fines for contravening regulations which were found to be unlawful by the Competition Commission 12 years ago.
Moreover, reports News24, the South African Medical Association (SAMA) has accused the national Health Department of not implementing an October 2015 report finding the HPCSA was rife with mismanagement and maladministration. It said despite being told its rules were illegal and anti-competitive, it has continued to punish health workers, mainly doctors, with fines of up to R60 000 for breaching its unlawful regulations.
The illegality relates to the commission’s 2011 rejection of the council’s application to exempt 10 ethical rules found to contravene the Competition Act, according to a November 2011 gazette announcing the commission’s rejection.
SAMA chairperson Dr Mvuyisi Mzukwa said former Health Ministers Aaron Motsoaledi and Zweli Mkhize – and current Health Minister Joe Phaahla – had ignored his association’s repeated pleas to implement the October 2015 report.
Head of the HPCSA’s legal services Advocate Phelelani Khumalo was found by the October 2015 ministerial report to have overseen a “dysfunctional system of professional conduct inquiries which has prejudiced practitioners and the public”.
Law-breaking
Competition Commission spokesperson Siya Makhunga told News24 the HPCSA was still implementing its anti-competitive rules that breach the Competition Act, and that the Commission had tried, since 2011, to “facilitate the amendment of the (regulations) to achieve competitive outcomes”.
Section 59 of the Competition Act states a body can be penalised by the Competition Tribunal should it breach competition laws.
“The engagements were still ongoing when a new process through the Health Market Inquiry (HMI) was launched in 2013 to fully examine the competition issues in the private health sector … including regulatory issues like the HPCSA ethical rules,” Makhunga said.
“A detailed report of the HMI was published in September 2019, making recommendations on reforms to the HPCSA and the ethical rules, a process that would have to be under the auspices of the National Department of Health.”
Health workers, who will be central to the NHI’s implementation, have faced punitive fines for charges sanctioned by Khumalo on rules found to be unlawful.
News24 sourced a list of 17 doctors charged and found guilty based on the illegal rules, including an optometrist fined a cumulative R60 000 for operating “a mobile clinic for purposes of advertising” in December 2013.
The optometrist operated an eye clinic outside a licensing department office for people applying for driving licences or renewals to do eye tests.
She was found guilty on three counts, despite the commission stating the rules prohibiting people from operating mobile clinics were unlawful.
Makhunga, meanwhile, said the Competition Commission, in its 2019 market inquiry report, also made findings against the HPCSA to strengthen its role before the NHI’s expected implementation.
Health Department spokesperson Foster Mohale said Khumalo had been “exonerated” by the HPCSA because the complaints against him happened before the legal head’s arrival.
Mzukwa, representing the medical association, disputed the report was heeded, saying the SAMA had “continuously called for the neglected recommendations of the (October 2015 report) to be implemented”.
Another recommendation was the “unbundling of the HPCSA into at least two entities: the historic Medical and Dental Council (which constitutes a third of the current HPCSA membership) and a Health and Rehabilitation Council (for the rest of the professional membership of the HPCSA)”.
“SAMA has on numerous occasions requested the Ministers of Health (Motsoaledi, Mkhize, and Phaahla) to follow through on this – even giving them a draft Bill to assist in the unbundling …”
On the HPCSA’s illegal rules, Mohale said the council had “made progress” in reviewing and amending its rules, with revisions apparently approved in March.
“The only outstanding step… is for these to be gazetted,” he said.
However, an HPCSA source the council had not approved anything in March, and only mentioned revisions after News24’s questions.
The DA has called for the dissolution of the HPCSA board, and the suspension of its CEO Dr Magome Masike and legal services head Khumalo.
Michele Clarke, DA shadow minister of health slammed the Department of Health and all Health Ministers for failing to implement the recommendations from the 2015 ministerial report.
And in 2019, the Competition Commission’s market inquiry report also made findings against the HPCSA ethical rules, especially those regarding fee-sharing, multi-disciplinary group practices, and employment of doctors, she wrote in a statement on the PoliticsWeb site.
“The HPCSA has failed to serve the interests of its members for a very long time. Annually, the DA is inundated with requests for help from unplaced interns and community service doctors, doctors who qualified in foreign countries struggling with accreditation and registration, and concerns that complaints and investigations are being mismanaged.
“This latest revelation shows that nothing has changed since the 2015 report found that under Advocate Khumalo the HPCSA was a ‘dysfunctional system of professional conduct enquiries which has prejudiced practitioners and the public’.”
Clarke said the “wilful unlawful conduct … is a terrible omen of the chaos and corruption that will surely trademark the NHI… Given the dire and debilitating circumstances created by the body meant to support them and the NHI threat, no wonder medical professionals are already seeking opportunities elsewhere”.
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