SCA: Doctor must face HPCSA over 'investments' solicited from patients

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The Supreme Court of Appeal (SCA) has overturned a High Court decision that shielded a doctor accused of improperly persuading patients to invest in a financially distressed company of which he was a director, from a disciplinary action by the the Health Professions Council of SA (HPCSA), writes MedicalBrief. Costs were awarded to the HPCSA.

The HPCSA alleges that Dr David Stephen Grieve, a general practitioner in Centurion, Gauteng, improperly persuaded a number of patients to invest in his financially distressed company, The Grieve Group, between 2004 and 2009. He is accused of transferring the funds invested in the company – said to total R22m – into a private bank account. Grieve is charged with unprofessional conduct.

When he appeared before the council’s professional conduct committee in 2014 he argued it lacked jurisdiction to hear the matter. Grieve said the accusations against him did not constitute unprofessional conduct as determined by the Health Professions Act and did not relate to the health profession.  After his attempt at lodging an internal appeal with the HPCSA’s Appeal Committee failed, Grieves launched an application, in the Gauteng High Court,

Grieve than approached the High Court, arguing that the HPCSA had incorrectly concluded that it could charge him because it had dealt with a similar matter in 2010. He also said the fact that his alleged conduct had been reported to a police station and the matter had been publicised did not mean that “a public interest duty arose for the council to proceed with the inquiry”.

The High Court appeal succeeded. The High Court drew a distinction between Grieve being accused of having abused the doctor patient relationship with his patients, which, according to the court, “would undoubtedly have put the health profession into disrepute” and the allegations that he “persuaded his patients to invest in the companies when he knew or ought to have known that [they] were in financial distress’” which, on the court’s reasoning, was not unprofessional conduct. It found that the doctor’s conduct did not relate to “treatment” of his patients, or to the health profession.

The SCA rejected this interpretation. The judgment, written by Judge Nambitha Dambuza, notes:

“Contrary to the limited disciplinary powers which Dr Grieve contended … The Council is not merely a medical malpractice watchdog; it is also the primary guardian of morals of the health profession.

“Should the Council have awaited the results of criminal prosecution? Indeed a criminal conviction may trigger disciplinary proceedings by the Council or Professional Board as provided in s 45 of the Act. However the Council’s disciplinary functions are not limited to instances where there has been criminal conviction.  It is the Council’s duty to act against conduct that is improper, unethical, dishonourable, disgraceful and unworthy. Conduct may be unethical without being criminal. And criminal prosecution may result in an acquittal for reasons other than the innocence of the respondent or accused. The Council remains obliged to discharge its duties as the moral compass of the health profession.

“In this case the allegations were that unprofessional conduct occurred within a doctor-patient relationship. The Council as the administrative body charged with the function of defining the norms and standards, and monitoring adherence to the ethical prescripts of the medical profession, was the primary repository of disciplinary power in relation to unethical conduct by its registered members.

“The fact that the conduct complained of was not defined or listed in the regulations did not detract from the Council’s administrative powers in respect of other conduct that it reasonably considered to be unprofessional.

“In the end, the two jurisdictional bases for the exercise of the Council’s disciplinary authority are registration, by the health professional concerned, with the Council and allegations which, if proved, would constitute improper, or disgraceful or dishonourable or unworthy conduct. In some instances, such as this case, a doctor-patient relationship will be a feature of the alleged conduct.  However, such a relationship is not a prerequisite for the council’s jurisdiction.”

 

Full SCA Judgment

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