A “tale of institutional inefficiency, demonstrating the traumatic and adverse prejudicial impact on the well-being of a professional medical practitioner accused of ‘unproven’ misconduct”. Blesset Nkambule, Medicolegal Consultant at Medical Protection discusses a recent case against the Health Professions Council of South Africa (HPCSA) where a healthcare practitioner was the subject of a never-ending HPCSA complaint’s process.
Complaints from the public directed to the Health Professions Council of South Africa (HPCSA) about the conduct of registered healthcare practitioners are a recognised and accepted eventuality of being regulated. That being said, this routine undertaking comes with its fair stress and anxiety to the healthcare practitioners who are the subject of the complaint. Furthermore, this undesirable impact can be compounded by a complaints process that is being unreasonably protracted by the HPCSA which in all instances unfairly prejudices the complainant and the respondent. It therefore goes without saying that it would be in the best interests of all concerned; the complainants and the practitioners complained against, for matters to be given due consideration and resolved expediently.
A recent judgment in a matter brought before the Pretoria High Court against the HPCSA focussed on the experience of a practitioner who was a subject of what seemed like a never-ending HPCSA complaint’s process. The judgment highlighted not only the adverse prejudices on affected healthcare practitioners that are metered out by the bureaucracy within the complaints process at the HPCSA but also teaches us all a valuable lesson in holding institutions such as the HPCSA, who are tasked with the important responsibility of guiding professionals and protecting the public, to account when it does not fulfil its responsibilities appropriately. This judgment signifies a victory achieved for a member assisted by Medical Protection and sets precedence for all registered healthcare practitioners.
Registered practitioners are mandated to avail themselves to this complaints process or risk findings being made against them in absentia. These findings may have an unwanted consequence on their ability to practice legally in South Africa or to seek employment opportunities anywhere else in the world. That is why at Medical Protection we encourage members to take complaints received from the HPCSA seriously and we assist members to respond appropriately and timeously in order to protect their professional interests.
The HPCSA complaints process and impact on practitioners
In short, the natural course of a complaint at the HPCSA is for incoming matters that are considered to be minor to be mediated by the office of the Ombudsman and the more serious matters to be subjected to a rigorous formal inquiry. The outcome of which may either be favourable and result in the explanation by the practitioner being accepted or unfavourable wherein a sanction against the practitioner may be imposed which can range from a caution, fine or suspension from practice.
It is the formal inquiry that lends itself to being a more costly and time-consuming process. Wholly because of the more involved process that requires evidence to be led and witnesses to be called and cross-examined. Much like a court setting. Unfortunately, while formal, there seem to be endless unnecessary delays. Naturally, the process and prospective outcome can be a source of much anxiety to practitioners. So, when a serious complaint matter is brought against you as a practitioner, would you not want to ‘have your day in court’ and have the matter finally brought to an end? What can you do if, by no fault of your own, the HPCSA delays in starting this formal inquiry process?
Next is the case which saw a member denied his ‘day in court’ for many years resulting in a High Court application aimed at compelling the HPCSA to fulfil its responsibilities.
Medical Protection offers assistance to members who are the subject of an HPCSA complaint. In this particular instance the member had been notified of a complaint against him in April 2008 by the HPCSA’s Complaints Handling Division and Medical Protection panel lawyers had duly submitted a letter of explanation to the HPCSA on behalf of the member in July 2008. Unfortunately, despite the matter being deemed serious and requiring a formal inquiry - nine and a half years after that resolution was passed by the HPCSA - the HPCSA had still not held the formal inquiry. This delay was without obstruction from the member and persisted despite diligent follow-up with the regulator by Medical Protection panel lawyers.
By 2021 a date for the formal hearing was still not forthcoming from the HPCSA. Medical Protection then instructed the panel lawyers to initially approach the HPCSA to attend to matter i.e. set a date and the hold inquiry as delay was prejudicing the member. This with the condition that non-action on the part of HPCSA would result in a High Court application to compel them to act appropriately. Unfortunately, the HPCSA did not respond and so the High Court application was proceeded with.
The High Court case
In February 2023 the court; sitting in the Gauteng High Court, Pretoria, heard that a complaint alleging unprofessional conduct was brought against the member at the HPCSA in 2008.
The member had denied being guilty of unprofessional conduct as charged by the HPCSA’s Committee of Preliminary Inquiry but was not afforded an opportunity to defend himself at a formal inquiry into his professional conduct. This because the inquiry into professional conduct had been delayed by the HPCSA professional conduct committee for 7 years; 13 years after the complaint was first lodged.
The court heard that the HPCSA had still not commenced proceedings despite the loss of substantial supporting evidence as well as evidence in defence.
The court also heard that during this significant delay a series of correspondence by the member’s legal representatives directed at the HPCSA requesting a set down date, yielded no tangible outcome other than multiple postponements and inadequacies related to the HPCSA securing evidence to prove their case.
All the while the member’s frustration and anxiety continued.
After an unsuccessful defence by the HPCSA the court ordered that the complaint against the member must be permanently set aside and that all existing disciplinary proceedings related to the complaint be terminated.
Learning points
- Complaints handling by the HPCSA are a necessary measure to hold registered practitioners accountable to the public they serve. This is a Statutory obligation for the HPCSA. Medical Protection advises practitioners to respond appropriately and timeously to notices of complaint received from the HPCSA.
- The HPCSA should not unreasonably subject practitioners to undue harm and adverse prejudice in their complaints processes. Everyone has the Constitutional right to administrative action that is procedurally fair . In that regard, the HPCSA will be held accountable for their administrative failures and also risk complaint matters brought before them being set aside.