Regulatory bodies are expected to serve and protect the public interest. As they are endowed with the cardinal mandate to enforce compliance with national standards, their disciplinary function plays an essential role in maintaining the integrity, professionalism and safety of regulated industries. Conversely, the professionals against whom disciplinary conduct proceedings are instituted are entitled to have such proceedings conducted in a fair and lawful manner.
In the case of Dr M A v The President: Health Professions Council of South Africa and others (unreported case no 34380/21) the Gauteng High Court ruled that disciplinary proceedings which had been instituted by the Health Professions Council of South Africa (HPCSA) and were pending against a medical practitioner, be permanently set aside and any further disciplinary steps be interdicted because of what it termed “a tale of institutional inefficiency”. The HPCSA had delayed commencement of the professional conduct hearing for approximately nine and a half years, during which time material evidence had been lost. The judgment is a vindication for those professionals who find themselves in a disciplinary limbo as a result of unproven charges of misconduct.
The judgment has its origin in an application for review brought by a healthcare practitioner (the applicant) in respect of a decision by the HPCSA (the second respondent) to eventually set down inquiry proceedings which had their origins in a complaint issued by a former patient in March 2008, in 2021, notwithstanding the prejudicial impact this would have on his right to a fair trial.
The original complaint which resulted in the pending disciplinary proceedings was issued thirteen years before the final notice of set down that gave rise to the launch of the review application. In 2008, the applicant was afforded an opportunity, in terms of the HPCSA’s Disciplinary Regulations, to prepare a written response to the complaint. This response was considered by the Respondent’s Committee of Preliminary Inquiry. The function of the Committee of Preliminary Inquiry is to conduct a sifting process to decide whether, based on the information at hand, there are prima facie grounds of misconduct, in which case the matter will be referred for adjudication at a professional conduct inquiry. The decision to hold such an inquiry was first communicated to the applicant in September 2011. A charge sheet formulated by the pro forma complainant was then delivered to the applicant in December 2011.
What followed from then until the launching of the review application, in response to the decision to set the inquiry down for hearing in March 2021, is a deplorable nine and a half-year history of failures by the HPCSA to bring the proceedings to finality. The list of reasons for this, while not exhaustive, includes, inter alia, numerous postponements of set-down dates which had been agreed to by the parties, unilateral enrolments of inquiry proceedings by the pro forma complainant on dates that had not been agreed to, numerous attendances by legal counsel, experts and the applicant at inquiry proceedings that were postponed by virtue of the Professional Conduct Committee having been improperly constituted, or for reason of inadequate preparation of evidence on the second respondent’s part, non-compliance with procedural requirements in respect of the provision of relevant evidentiary documents, the loss of material evidence and the eventual death of a material witness, as well as an extensive paper trail of unanswered correspondence sent from the applicant’s legal representatives to the second respondent.
Giving credence to the applicant’s efforts to avoid an inordinate delay, the Court found that “the applicant was proactive and sought to get the disciplinary hearing finalized within a reasonable time. The respondents, on the other hand, deliberately, alternatively due to incompetence, ignored the plight of the applicant”.
The applicant sought to have the disciplinary proceedings permanently set aside, by invoking the remedies of a legality review, alternatively an administrative law review in terms of the Promotion of Administrative Justice Act (PAJA), as well as a final interdict.
The legality review:
The applicant in this case contended that the disciplinary process amounted to the exercise of a public power, and so was subject to review under the broad constitutional principle of legality; thereby seeking to establish the precedent that a medical practitioner has the right to review decisions of the regulator by way of a legality review. The disciplinary process would only be deemed lawful if the public power had itself been legitimately exercised. It was argued that the principle of legality is not derived from the common law, but is an aspect of the rule of law, and, as such, the process which underpins these disciplinary proceedings must also be reasonable, and consequently rational, as well as procedurally and substantively fair.
It was also contended that the principle of legality includes procedural fairness as a matter of rationality, and as a requirement of legality. The applicant relied on a broad construction of the principle of legality, while acknowledging that the scope of application of PAJA and section 33 of the Constitution is confined to the category of “administrative action” defined therein. It was contended that the principle of legality nonetheless affords the Court a degree of control over any action which involves the use of public power, and that both the process as well as the decision to set the matter down was reviewable.
PAJA review:
It was initially argued by the respondents that the applicant had not complied with section 2(a) of PAJA, which requires that internal remedies available to the party applying for review must be exhausted before instituting judicial review proceedings. The Court found that the HPCSA’s Disciplinary Regulations do not provide for an internal remedy in circumstances where disciplinary proceedings have been unreasonably delayed or conducted in a manner which is unlawful. The Court clarified that the appointed functionaries of the HPCSA, such as a Committee of Preliminary Inquiry, did not have the statutory authority to review its own decisions internally.
The Court had the following to say about this: “I cannot see how the Preliminary Committee, a statutorily created body, that has strict and limited legislated powers, could ever reconsider its own decision to have referred the complaint for an inquiry” … “it is functus officio once it has made its initial decision to hold the inquiry. It has no self-review powers”. Recognizing the dearth of adequate legislative mechanisms available to a medical practitioner to challenge a mishandling of the process leading up to an inquiry, the Court acknowledged that “the applicant has no power or legal right, as one usually has with, for example, an internal appeal, to insist that the preliminary committee reconsider its earlier decision. It would therefore not constitute a remedy available to the applicant.”
Outcome:
Whilst the setting aside of the disciplinary proceedings and the order permanently staying further disciplinary proceedings was ultimately granted in terms of interdictory relief, the Court nonetheless accepted, in principle, that a legality review brought by a medical practitioner who is subjected to inexcusable delays giving rise to irreversible trial prejudice, would be competent. It furthermore found that the decision by HPCSA to re-commence inquiry proceedings in 2021 despite the lapse of time and loss of material evidence, was irrational and the inquiry would be tainted by irreparable unfairness if it were to proceed.
The Court accepted that a review made in terms of PAJA was an appropriate remedy available to the applicant. Although section 1 of PAJA states that it is the “decision taken, or any failure to take a decision” that defines administrative action, the Court said as follows regarding the application of PAJA in this case: “to the extent that the process adopted by the respondents constitutes administrative action as defined in section 1 of PAJA, section 3(1) of PAJA requires that administrative action must be procedurally fair”. This leaves open the question of whether it is in fact the “decision” to re-institute proceedings in March 2021 that is envisaged by the Court to have brought the matter under the purview of PAJA, or the broader process amounting to the inordinate delay, as the language appears to suggest. In the event of the latter, the doorway to PAJA-initiated relief in cases where there is mishandling of the process between the decision to proceed to a formal inquiry and the set down, may have been opened.
Relevance:
Whilst it is a well-established principle of administrative law that it is not only the decision but also the process that must be rational, the judgment in this case recognizes the principle, in respect of HPCSA disciplinary proceedings, that unreasonably delayed procedure lacks rationality and may therefore be susceptible to a legality review.
Putting aside the technical distinction in respect of the remedies of legality review and interdictory relief, for the medical profession, the judgment is a windfall for practitioners who find themselves at the mercy of arbitrarily protracted disciplinary processes in respect of unproven charges of misconduct. More broadly, it is a clarion admonition against the irrational exercise of public power and highlights the principle that dilatory conduct on the part of regulatory functionaries can in and of itself compromise disciplinary proceedings.
This judgment is of particular relevance for medico-legal attorneys who represent practitioners in disciplinary proceedings before the HPCSA, as the firm reproach by the Court of these dilatory practices will be of significant impact.
