In June 2023, the Minister of Health, Dr Joe Phaahla, published new regulations (GN R3564 GG48838/23-6-2023), which amended the Health Professions Council of South Africa’s (HPCSA) professional conduct inquiry process.

Many of the amendments are designed to streamline the professional conduct inquiry process by removing formal legalistic mechanisms, which can lead to delays.

The majority of these changes are timely and welcome when you consider the results of a recent Medical Protection survey of ‘204 health professionals in South Africa who had been investigated by the HPCSA between 2018 and 2022’ (Dr Yash Naidoo ‘HPCSA amendments offer hope’ (www.medicalbrief.co.za, accessed 27-9-2023)). In the survey, 71% of practitioners said, ‘the length of the investigation [impacted on] their mental well-being most’, with some lasting many years (Dr Naidoo (op cit)).

Here I will detail each amendment in the new regulations and how they may reform the HPCSA’s professional conduct inquiry process.

The first and second amendments simply change the name of the ‘ombudsman’, to the ‘chief mediator’. The chief mediator is a person appointed by the council to mediate in the case of minor transgressions. The process of mediation remains the same.

The third amendment is far more significant than a mere name change. This amendment inserts reg 4A into the picture. Regulation 4A allows for a complainant who is aggrieved by the decision of the HPCSA’s Preliminary Committee of Inquiry (the PCI), to appeal the decision. ‘In other words, if a patient complains and the PCI accepts the practitioner’s explanation, the patient can now appeal that … decision’ (Dr Naidoo (op cit)).

This option did not exist in the past; the matter would have been regarded as finalised and the complaint closed. Now, if an appeal is lodged by the complainant (which must be done within 30 days from the date on which the complainant becomes aware of the decision), the practitioner will be notified of the appeal and given at least 14 working days to provide a further written response, failing which the appeal will be submitted to the HPCSA’s Appeals Committee without the practitioner’s written response.

‘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’ (Dr Naidoo (op cit)).

Contrary to the third amendment, the fourth amendment is aimed squarely at streamlining the inquiry process. The amendment shortens the period for notifying a practitioner that they have been referred to a formal inquiry, from 60 days to 30 days. The notification contains details of the date, time, and place of an inquiry, as well as the charge sheet formulated by the pro forma complainant. The charge sheet sets out the charges against the practitioner and is informed by the PCI’s points of inquiry.

The amendment expressly provides that the pro forma complainant may formulate and at any time effect immaterial changes to the charge sheet without the approval of the PCI or the chairperson of the PCI, provided that the charge sheet must be consistent with the PCI’s points of inquiry.

The fifth amendment seeks to introduce one main provision, namely that the pro forma complainant and the practitioner or their legal representative must exchange all documents they intend using during the inquiry, 15 days before the inquiry.

However, while the amendment appears to deal solely with the exchange of documents prior to an inquiry, what it also does is to remove an important regulation, which had existed in the previous version of the regulations. That is the mechanism for the request for further particulars.

The amendment removes the provision that ‘allowed a practitioner or their legal representative to ask for further information regarding the charges formulated by the pro forma complainant’ (Dr Naidoo (op cit)). In the past, a practitioner or their legal representative could request further particulars ‘up to 30 days before the inquiry, and the pro forma complainant would have to respond in writing within 14 days’ (Dr Naidoo (op cit)).

It seems that this amendment is another attempt at streamlining the inquiry process and removing more formalistic and legal mechanisms, which could delay matters, although it remains to be seen whether this may have a detrimental impact on the practitioner’s right to a fair hearing.

The pre-inquiry conference is the meeting between the pro forma complainant and the practitioner, or their legal representative, and is held at least seven days before the inquiry, to discuss formal and legal matters.

The sixth amendment makes one significant change to the existing regulations governing the conduct of a pre-inquiry conference. It removes the previous regulation, which required the parties to exchange summaries of the opinions of experts that they intended to call at the inquiry.

Again, presumably the objective of this amendment is in keeping with the underlying theme of the other amendments, which is to excise the formalities involved in the inquiry process. The same question regarding a practitioner’s right to a fair hearing, however, applies.

The seventh amendment deals with an appeal against the decision of a professional conduct committee.

The practitioner or the pro forma complainant may appeal against the findings or penalty of the professional conduct committee (or both the findings and the penalty). The amendment makes it clear that this may only be done after the penalty has been imposed on the practitioner, or after the practitioner has been discharged.

The eighth 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 hopefully also save costs for the HPCSA and indirectly all registrants who pay yearly registration fees’ (Dr Naidoo (op cit)).

Discussion

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. ‘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 beginning of 2023’ (Dr Naidoo (op cit)).

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 well-being of practitioners whose main professional concern is to care for and uphold the well-being of others. … 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’ (Dr Naidoo (op cit)).

Dr Yash Naidoo BChD (UP) LLB (Unisa) is the Dentolegal Consultant at Medical Protection.  

This article was first published in De Rebus in 2023 (Oct) DR 16.