Reforming HPCSA’s professional conduct inquiry process could benefit mental wellbeing for practitioners involved, says By Dr Yash Naidoo, Case Manager at Medical Protection. 

In a recent Medical Medical Brief column column we discussed the results of a Medical Protection survey, completed by 204 health professionals in South Africa who had been investigated by the HPCSA between 2018 and 2022. Of those who responded, 71% said that the length of the investigation impacted on their mental wellbeing most.

This sadly comes as no surprise to us. Through our work supporting members, we see first-hand how a HPCSA investigation takes its toll on the mental wellbeing of those involved, particularly the length of the investigation.  Previously I have written on the journey of a HPCSA complaint and pointed out that complaints which hang over our heads as practitioners, can leave us with seemingly endless sleepless nights and take us on a perilous mental journey which should be avoided at all costs.

There is hope, however. Recently I, alongside other representatives from Medical Protection, have been engaging with the HPCSA on how the investigation process could be made more efficient and compassionate. We have been encouraged by the regulator’s willingness to take steps to mitigate the negative effects that the complaints process inevitably has on practitioners.

We are seeing concrete steps being taken by the HPCSA, as well improved efficiency in its preliminary complaints handling.

One of those concrete steps took place on 23 June 2023, when the Minister of Health published regulations which introduce eight amendments to the HPCSA’s professional conduct inquiry process.

Overall, the changes point to an underlying theme and objective, which is to streamline the professional conduct inquiry process by removing some formal legalistic mechanisms which can lead to delays.

The complaint process

Before discussing the latest changes, here is a refresher on the journey of a complaint.

When a complaint is lodged, the HPCSA triages the complaint. Minor complaints will be directed to the office of the Chief Mediator (previously known as the Ombudsman, prior to the recent amendments). Minor complaints involve matters such as billing issues, allegations of poor communication and failures by practitioners to disclose medical records to patients.

The Chief Mediator must mediate with a view to resolving the matter amicably and efficiently. The mediation process is therefore less rigid, by design. For example, the Chief Mediator may ask for further information in any manner he or she deems appropriate and from any person who, in his or her opinion, may assist in the mediation to resolve the matter. After the mediation process, the Chief Mediator will make a determination (for example, Dr X will give the patient copies of their records) and the parties can either choose to abide by the determination or not. If there is no agreement, the matter must progress to the formal complaint process. Importantly, whatever is discussed and shared with the Chief Mediator is confidential and privileged and, if a matter progresses further, may not be considered by the HPCSA’s Preliminary Committee of Inquiry (PCI).

If the complaint is more serious or if mediation fails, the formal complaint procedure begins. A formal letter of explanation by the practitioner needs to be submitted, along with any supporting documents. The PCI will consider this and either accept the explanation and close the case or charge the practitioner for unprofessional conduct. In some cases, it calls the practitioner to a roundtable meeting before deciding. This can be intimidating.  If the transgression is minor, the HPCSA may sanction the practitioner with a caution, reprimand, or a fine. But if the transgression is not minor, or if the practitioner does not accept the sanction imposed for a minor transgression, a formal professional conduct inquiry would follow. Sometimes, there is an option to avoid an inquiry by paying an admission of guilt fine.

Before the inquiry begins, there would be a pre-inquiry meeting between the practitioner’s legal team and the HPCSA prosecutor (known as the pro forma complainant), where matters such as pleadings and the exchanging of documents are discussed. The practitioner’s legal team would also consult with the practitioner and their expert witnesses to prepare for the inquiry.

When a matter proceeds to a formal inquiry, that is when costs – money and time – start to escalate.  Think of the inquiry as you would a typical courtroom matter on television. The complainant is represented by the HPCSA’s pro forma complainant, and the practitioner is the respondent who may have their own legal representation. Each party can call witnesses and the inquiry itself can take a day or more – depending on the number of witnesses and the complexity of the matter.

At the conclusion, the HPCSA’s Professional Conduct Committee makes its finding.

If the HPCSA finds the practitioner guilty, it must decide on what penalty to impose. The pro forma complainant can lead evidence about previous convictions and address the committee on proposed penalties. The practitioner’s legal team will then lead evidence in mitigation. After deliberation, the HPCSA would inform the practitioner of the penalty or penalties imposed. These can range from the minor – such as a caution and reprimand – to fines which can total hundreds of thousands of rand (and which, being punitive in nature, are generally not paid for by a practitioner’s defence organisation or professional indemnity insurer), to the most severe being suspension from practice or removal from the register.  The outcome is published on the HPCSA’s website for the public to see.

The process takes time and has historically been notoriously riddled with delays. We have seen some matters take more than 10 years to conclude.

All these factors make it easy to understand why HPCSA investigations can have such a devastating toll on the practitioners involved. But as I have said, there might be hope.

The amendments

While the amendment states that the Ombudsman is now called the Chief Mediator, the mediation process itself remains unchanged. This process is an invaluable tool which can help efficiently dispense with minor grievances. Disposing of complaints at this early stage is highly recommended, where possible.

The HPCSA now only needs to give 30 days’ notice of a formal inquiry; down from 60 days in the old regulations. This means that, where appropriate, it can start and conclude proceedings without having to wait an extra 30 days simply because the law said so.

The formal legal process of a request for further particulars has also been removed. This allowed a practitioner or their legal representative to ask for further particulars or information regarding the charges formulated by the pro forma complainant, up to 30 days before the inquiry, and the pro forma complainant would have to respond in writing within 14 days. Failure to comply with this could be grounds for a postponement. It is not inconceivable that this step could have been used by ill-prepared legal representatives to stall matters. The removal of this mechanism is clearly intended to avoid such delays, however it remains to be seen if, in practice, its absence will negatively impact a practitioner’s right to a fair hearing.

At the pre-inquiry meeting, the new regulations make it no longer necessary for the parties to exchange summaries of the opinions of experts that they intend to call at the inquiry. Again, presumably the objective of this amendment is to excise a formality in the inquiry process which could cause delays. With that said, the same question regarding a practitioner’s right to a fair hearing applies.

A couple of the changes deal with appeals.  Firstly, a complainant who is aggrieved by the decision of the HPCSA’s PCI, may appeal that decision. In other words, if a patient complains and the PCI accepts the practitioner’s explanation, the patient can now appeal that preliminary decision within 30 days. The significant implications of this amendment ought to be self-evident. Of all the eight amendments, it is the only one which has the potential to delay the process as opposed to curtailing it. The other appeal amendment clarifies when someone may appeal against the findings or penalty imposed by a professional conduct committee after a formal inquiry. This should provide certainty and help to avoid protracted legal arguments.

The final amendment is another one aimed at saving time and costs. It provides that the default medium for the holding of pre-inquiries and professional conduct inquiries is virtual – such as via Microsoft Teams or Skype. The registrar can direct otherwise and presumably will accommodate reasonable requests to hold the inquiry in person. This amendment will not only help to save time and costs for practitioners and their indemnifiers but should hopefully also save costs for the HPCSA and indirectly all registrants who must pay yearly registration fees. Fees that were allocated for hiring venues, equipment and travel costs associated with in-person inquiries could be used more productively elsewhere.

Discussion

We are pleased to note that the HPCSA’s preliminary inquiry processes have recently become more efficient, with a number of cases being resolved in less than a year from the date of submission of the complaint, towards the latter part of 2022 and the beginning of 2023. The reforms announced last month should only improve the process.

This is a positive development and will no doubt benefit both the professions and public perception of the professions, alike. Justice delayed is justice denied. As the Medical Protection survey indicates, delays also have a significant impact on the wellbeing of practitioners whose main professional concern is to care for and uphold the wellbeing of others.

However, despite the reforms, it remains as essential as ever that healthcare professionals ensure they have expert protection in place should they ever be investigated by the HPCSA. Medical Protection, which protects the professional interests of over 300,000 healthcare professionals around the world, including more than 30,000 in South Africa, supports healthcare practitioners from the moment a HPCSA complaint is received, through to its conclusion.

Time will no doubt tell whether these latest changes will have the intended effect, however the desire for improved efficiency from the HPCSA is welcome and credit should be given where it is due.

We hope to continue our dialogue with the HPCSA and we are committed to doing everything possible to help bring about improvements for healthcare practitioners.