Dr Yash Naidoo, dento-legal consultant at MPS, explains that when the HPCSA launches an investigation, it also has to strictly abide by the law.
Naidoo writes:
Enforcement is in season. Reports of HPCSA operations conducted with the SAPS have been circulating for weeks, targeting individuals allegedly posing as registered practitioners alongside practitioners who are allegedly treating patients while suspended.
All of this has resulted in arrests at practices and, most unsettling of all for practice owners, reports that practices will be referred to their Professional Boards over the people they employed.
None of that is trivial, and none of it should be waved away. Patients are entitled to be treated by people who are registered to treat them.
But there is a second question that tends to get lost whenever enforcement makes headlines, and it is the question this article is about.
When the HPCSA investigates a practitioner, must it comply with the law itself?
The answer is yes. As one of our members discovered, when the regulator cannot show that it did, the consequences can be considerable.
This article is not about any practice in the current news cycle. It is about a dental practice, and a member whose story began with an unannounced inspection, a trip to a police station, a criminal case, a complaint, a charge sheet and an HPCSA Professional Conduct Committee inquiry. Then, the committee terminated the inquiry and the charges were dropped.
If you are a doctor rather than a dentist, resist the urge to file this under dentistry’s problems.
The Health Professions Act does not distinguish between a dental chair and a consulting room and nor does its inspectorate.
The knock
On an ordinary working day, an HPCSA inspector arrived unannounced at a dental practice in a South African town. The visit was described as a “random” or “routine” inspection.
The dentist’s own registration checked out. The inspector then turned to the rest of the team, and the day unravelled. The inspection report alleged that a dental assistant’s registration had been suspended over unpaid annual fees, that a student dental assistant’s registration had closed, and that an oral hygienist’s registration had been suspended too.
One employee was escorted to a police station, and a criminal case was opened. The dentist was reported to the HPCSA for employing unregistered staff.
An uncomfortable position
The staff had assured the practice that their registrations were in good standing, the practice took them at their word, no certificates were requested, and no independent checks were run.
Some staff offered partial explanations: one apparently held proof of a payment to the HPCSA that had not been allocated correctly, and another said they had paid at a post office but could not produce proof.
In other words: not a rogue practice, but not a fully protected one either. Had the allegations been accepted at face value, an adverse finding was a real possibility. Which is what makes what happened next remarkable.
The question that never got answered
When Clyde & Co, our panel attorneys, came onboard, they asked a key question beforehand: whether the regulator had authority.
Section 41A of the Health Professions Act is the provision under which the inspection claimed to have been conducted. It permits the Registrar to investigate only under defined conditions. Subsection (4) also outlines that an investigating officer must be issued with a certificate of appointment and must produce that certificate on demand.
Which provision of section 41A applied here? Who instituted this investigation? And where was the investigator’s certificate of appointment?
The certificate was never produced. The statutory basis was never clarified. By the time the matter reached the Professional Conduct Committee, the explanation offered for the missing certificate was that it had existed but had been destroyed after the inspector left the HPCSA’s employ.
A public body exercised power at a private practice, a person was taken to a police station and a practitioner’s name was placed before his Professional Board, all without illustrating the proper authority. Finally, when asked to show the legal authority, the answer was that the paperwork no longer exists.
Nobody can say they were not warned
None of this should have caught the HPCSA by surprise. On 30 October 2024, MedicalBrief published our article “What to do when an HPCSA investigator knocks on your door”. It warned that unannounced “inspections” had become a pattern, noted that the word “inspection” does not appear in the Act at all, and reminded practitioners that they are entitled to ask an investigator for a certificate of appointment.
The academic literature had raised the alarm even earlier. A 2024 note in the De Jure Law Journal concluded that section 41A investigations may only be instituted by the Registrar under defined conditions, that certificates of appointment must be produced on demand, and that warrantless searches falling outside those conditions collide with the Constitutional Court’s privacy jurisprudence.
A word about consent
An investigating officer who wants to search premises and seize documents ordinarily needs a warrant. The Act permits a search without one in limited circumstances, and the most common of them is that the person gave consent.
Faced with an unannounced visit, most people co-operate instinctively. But co-operating may still amount to consent, and it may later be relied upon as the very thing that made a warrantless search lawful.
None of which means you should refuse. It means you should understand what you are agreeing to, ask what is being sought and on what authority, and record what happened while it is fresh. If you are a member, call us before you agree to anything of substance.
The road less travelled
As the HPCSA’s deadline for a written response approached, our member faced a choice.
¥ Option one: submit a detailed explanation and argue for leniency. That is the well-trodden path, and it is often the right one.
¥ Option two: decline to answer the merits at all, invoke the right to remain silent, and put the legality of the inspection squarely in issue.
He chose option two. The logic was simple: a practitioner cannot fairly be asked to answer a case built on evidence whose lawful origin the regulator will not, or cannot, demonstrate.
The Committee of Preliminary Inquiry referred the matter to a Professional Conduct Committee inquiry. Counsel was briefed, and the proceedings were challenged at the threshold, before any evidence on the merits was heard.
The ruling
The committee was troubled by the certificate that was never produced, and by the absence of any evidence explaining its claimed destruction. It also highlighted that no framework or guidelines governing so-called routine inspections had been shown to exist.
It found the evidence of the alleged suspensions wanting: non-payment of fees, as the defence had stressed throughout, is not the same thing as a proven statutory suspension. It found the allegation involving the student dental assistant too vague and it concluded that no prima facie case of unprofessional conduct had been made out.
The concerns were cumulative. No single point won the case but together, they ended it. The inquiry was terminated. The charges were dropped.
What this case is not
Before anyone reads this as a licence to turn inspectors away at the door: do not.
Section 41A makes it a criminal offence to hinder or obstruct an investigating officer, punishable by a fine or imprisonment. Nothing in our member’s case involved obstruction. The practice co-operated on the day.
You should co-operate but still ask the questions the Act entitles you to ask. Who authorised the investigation? Under which provision? May I see your certificate of appointment? If the answers exist, no harm is done by asking. If they do not, that fact may end up mattering more than anything else in the file.
If you are a member, call us before you answer anything of substance. This case was won by decisions taken early.
The part that is on you
A critical point to note is that had the regulator been able to demonstrate its authority, the case could have turned out very differently.
Your practice needs a system for independently verifying staff registrations, and it needs to be followed. It will not make you immune to an inspection but it will mean that when one comes, the answers are already on file.
So, when you employ any registered person, whether dentist, oral hygienist, dental therapist, or dental assistant:
¥ Obtain proof of registration before they start and keep it on file.
¥ Recheck registration status after every annual renewal cycle and document the check.
¥ Make continued registration an express condition of employment in your contracts.
¥ Consider the recommendation our attorneys made after this case closed: require registered staff to provide their annual HPCSA invoices and put a process in place to confirm those fees are actually paid.
How did we get here?
Regulators perform a vital public function, and the current crackdown responds, in many instances, to genuine misconduct that endangers patients. Nobody, least of all an indemnifier, wants unregistered “practitioners” treating the public.
But the Health Professions Act binds everyone who acts under it, including those who enforce it. Our member’s case ends with a question with which the whole profession, and its regulator, should sit. In a disciplinary inquiry, the first question is usually: what did the practitioner do? Sometimes the better question is: how did we get here in the first place?
This article was prepared in collaboration with Athol Gordon (Partner), Daniel Dix (Associate) and the team at Clyde & Co, MPS’ panel attorneys, who acted for the member in this matter. It is published with the permission of the member.
See more from MedicalBrief archives:
Serious consequences of not paying HPCSA registration fees
Why it’s important to update personal details with the HPCSA
Alternative approaches could lessen HPCSA delays and mental stress