The Health Professions Council of South Africa (HPCSA) was established to regulate the education, training, and registration of health professionals in South Africa. The Council also protects the interests of the public by, inter alia, providing a formal framework to guide the profession. This ensures that practitioners uphold and maintain professional ethical standards and provides for appropriate investigation of complaints against practitioners.
I focus here on one of the harshest punitive measures that can be taken against a medical professional in order to protect the public interest - the immediate suspension of a practitioner. This is unlike any other proceedings at HPCSA. The usual procedure, on receipt of a letter of complaint, is for the medical practitioner to respond to the complaint. The matter is then considered by the members of the Professional Board. One of the penalties that might be imposed is a formal inquiry into the conduct of the practitioner. However, in this unusual application for immediate suspension, if the Chairperson of the particular Board is of the opinion that the complaint against the practitioner, together with other evidentiary material, shows evidence of unprofessional conduct that is so dangerous and unsafe that the public needs to be protected from the practitioner, an application is made to immediately suspend the practitioner until the institution of a formal inquiry. This application for suspension is set out in the Regulations Relating to the Suspension of Practitioners (the Regulations).
CIRCUMSTANCES FOR SUSPENSION
Regulation 2 states that on receipt of a complaint, the Registrar may forward such complaint to the relevant Professional Board to exercise its powers of suspension if any of the circumstances listed below exist:
- Actual physical or mental abuse of a patient by a practitioner or a substantial risk of such physical or mental abuse.
- Harm or injury to a patient as a result of unsafe professional practices or a substantial risk of such harm or injury.
- Evidence of substance abuse by a practitioner that impairs such practitioner's ability to render professional services.
- Any act by a practitioner that, in the opinion of the Professional Board, substantially lowers the dignity or damages the reputation of a person practising the profession or
- Any other act or omission on the part of a practitioner that, in the opinion of the Professional Board, indicates that the physical or mental health or bodily integrity of any member of the public might be at risk should the practitioner continue to practise his or her profession.
Regulation 2(2)(a) states that the regulations which normally apply to preliminary procedures and procedures at a suspension hearing may be departed from only if this is reasonable and justifiable in the particular circumstances, and only to the extent that this is necessary. Regulation 2(2)(b) states that any departure from these procedures will include, but is not limited to, a departure from the stipulated time frames that are referred to in the Regulations.
THE PRELIMINARY PROCEDURE
Regulation 3 of the Regulations Relating to the Suspension of Practitioners sets out the procedure to be followed before a suspension hearing. I set it out below:
- The Registrar requests the complainant to confirm the contents of the complaint under oath.
- Thereafter, the Registrar may within five working days of receiving a complaint, call for further information which may result in further investigations. The Registrar may take evidence on affidavit from witnesses and may call upon any person to produce for inspection, before or at the suspension hearing, evidential material in his or her possession. The Registrar may also summons a witness or potential witness to appear before him in this regard.
- The Registrar shall as soon as possible forward the complaint, together with any evidential material, to the chairperson of the Professional Board for further consideration. If the chairperson is of the opinion that the documents reveal prima facie evidence of unprofessional conduct of the nature referred to in Regulation 2, he or she refers the matter to an ad hoc committee and instructs the Registrar to appoint a pro forma complainant to present the case before the ad hoc committee. The ad hoc committee is established to decide whether the practitioner should be suspended from practice pending the institution of a formal inquiry. It consists of at least three registered members of such profession and the chairperson is a member of the relevant Professional Board.
- The chairperson of the relevant Professional Board determines the date, time and place of the hearing. The Registrar issues a notice and sends it to the accused at his or her last known address by prepaid registered post or through service by the sheriff of the High Court. The notice sets out the details of the hearing and encloses particulars of the complaint and any other evidential material in support of the complaint. It informs the accused of his or her right to obtain legal representation, and to make written representations. These take the form of an answering affidavit to the complaint and must be submitted within a period of 15 days from the date of service of the notice on the accused. They should reach the pro forma complainant by no later than 10h00 on the day before the date of the suspension hearing. The notice also instructs the accused to make available all records in his or her possession pertaining to the relevant complaint.
- The Registrar then provides each member of the ad hoc committee with copies of the notice, including the particulars of the complaint, all evidential material and any representations received from the accused.
PROCEDURE AT THE SUSPENSION HEARING
Regulation 4 deals with the procedure at the hearing:
- At any stage during the suspension hearing, the ad hoc committee may call any person, including the accused, to give oral evidence under oath and if called, the accused may elect not to give evidence. If the accused elects not to give any evidence, the matter will be decided without such evidence.
- The ad hoc committee may, on instruction from the chairperson, summon witnesses and require the production of any book, record, document or thing. Every person summoned to the suspension hearing is bound to obey the summons. If they refuse to do so, or without sufficient cause fail to attend and give evidence, refuse to take the oath, or refuse to produce any book, record or document, they will be guilty of an offence and on conviction liable to a fine not exceeding R5 000. However, every person who is summoned to give evidence is entitled to all the privileges to which a witness subpoenaed to give evidence before a provincial division of the High Court is entitled.
- Any member of the ad hoc committee may ask the accused questions in the order determined by the chairperson.
- The accused is also afforded an opportunity to ask questions and to cross-examine any person called by the ad hoc committee as witness.
- The ad hoc committee, after having given both the pro forma complainant and the accused or his legal representative an opportunity to address it on the merits of the suspension application, deliberates in camera.
- If the ad hoc committee is not able to reach an immediate decision, it may reserve its decision and the accused is notified of this in writing. If the ad hoc committee is able to reach a decision, the accused shall be notified verbally of such decision and the reasons therefore. If the Committee decides to suspends the accused, the accused is also informed of his or her right to appeal. In such case, the formal inquiry shall be given priority in terms of the Regulations.
- If an ad hoc committee decides not to suspend the accused, the matter proceeds in terms of the Regulations relating to the conduct of inquiries into alleged unprofessional conduct under the Health Professions Act. The transcript of the record of the suspension hearing, the complaint, any affidavits, representations and other evidential material is referred to a committee of Preliminary Inquiry.
A DISCUSSION OF THESE REGULATIONS BASED ON A RECENT MATTER
A letter of complaint was forwarded to the HPCSA regarding the management of a patient by a practitioner. Subsequently, a second letter of complaint was received by HPCSA against the same practitioner relating to another similar incident. On receipt of the second complaint, the Council elected to investigate the matter further for a possible application for suspension, as both complaints related to the death of a patient and both occurred within a short space of time.
As a result, the complaints were investigated concurrently for purposes of an application for suspension. A notice was emailed to the practitioner requesting them to attend the suspension hearing. The notice contained details of the hearing, the members of the ad hoc committee, the letters of complaint, affidavits from various nursing staff, hospital records, SAPS statements and an expert report, which obviously criticised the practitioner's management of the patients. This was in compliance with the regulation, in that the Council investigated the complaint and obtained collateral information supporting the application for suspension.
In addition, the Council complied with Regulation 2 because, based on the documents, the suspension appeared necessary to prevent harm or injury to a patient, or substantial risk thereof, as a result of unsafe professional practices.
The practitioner approached us for assistance. As the ad hoc committee would have received the documents at about the same time as the practitioner, we needed to respond to the application urgently. According to the notice, the practitioner was given 14 days' notice (inclusive of weekends) of the suspension hearing. The time constraint of 14 days creates one of the major difficulties an accused faces during preparation for the hearing. We did consider bringing an objection on the basis that the Council had not complied with the usual regulations which require it to provide 15 court days' notice. However, we decided not to do so as we considered that Regulation 2(2)(a) and (b) provides for a departure from the stipulated time frames. We were also mindful that, due to the seriousness of the matter, the ad hoc committee might become frustrated and take exception to any delays, which could be prejudicial to the practitioner. In the best interests of the practitioner, and considering the nature of the complaints, we elected to continue with the matter within the available time frame. We managed to instruct an expert, obtain post-mortem reports, and draft responses to both the complaints. We submitted the response and annexures, including a brief report from our expert, via email to the prof forma complainant within the given time, ensuring compliance with the regulations.
It is of interest that, during the suspension hearing, the chairperson relied on Regulation 2(2)(a) and (b), which gives the committee a discretion to depart from the regulations, to allow it to proceed with the hearing in the absence of one of the specialists, who was not in a position to attend.
A difficulty that often arises in such proceedings is that the ad hoc committee members may only meet for the first time on the morning of the suspension hearing. Therefore, they cannot discuss the matter in order to determine whether there are any witnesses that should be summoned to appear at the hearing or to bring documents relevant to the hearing, as set out in Regulation 4(2) and (3). The regulations are silent on what should happen should the committee members believe that they require a certain witness or document before reaching a decision. The committee would probably then need to adjourn the matter, and subsequently provide an outcome in writing on receipt of the additional information.
In accordance with Regulation 4(4), each committee member questioned the accused and heard the accused's responses. No further witnesses were called in the matter. From the questions the ad hoc committee members asked the accused, it was evident that they were well prepared and knowledgeable about the matter on which they had to make their decision. The legal representatives had the option of giving closing arguments. The pro forma complainant provided a written copy of the heads of argument. The accused's legal representative argued the matter. As set out in the Regulations, the committee members then requested that all parties leave the room while the committee considered the matter. The parties were later called back into the conference room. The committee members decided to suspend the accused, and provided reasons for the suspension. These reasons will then be used by the registrar in setting out the charges against the accused at a formal disciplinary inquiry. As already mentioned this was the first suspension hearing that he had been involved in. The pro forma complainant was helpful in guiding us on what to expect. At the end of the hearing, it was evident that the matter was conducted in accordance to the Regulations.
CONCLUSION
From our experience at this hearing, it is evident that this is not an application that the HPCSA makes on a regular basis. There have been 6 suspension hearings over the last 15 years. This is certainly reassuring as it indicates that the Council embarks on this extremely punitive application only in extreme cases. While there are understandable difficulties given the short time frames, the Council acted in a thoroughly professional manner in making this application. We were impressed by the fact that the Council using very experienced ad hoc committee members and experts. While we initially believed this to be an unfair regulation, following the suspension hearing we now feel that the Council did in fact act in the best interests of the public.
While this Regulation deals with dangerous and unsafe medical practice, medical practitioners need to be aware that such an application is possible. It can take just one incident of mismanagement for the Council to bring such an application. Therefore, medical practitioners have to constantly remain abreast with the knowledge relevant to their field of practice so that patients are managed appropriately. However, if the worst happens, they can rest assured that they will receive expert guidance and assistance in dealing with such problems provided they consult attorneys who are well-versed in medico-legal matters.