Paper 7_Heather Wilmot

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					                                      DENEYS REITZ
                              MEDICAL LAW SEMINAR
                                          June 2008




                    DEVELOPMENTS WITHIN THE HPCSA
 CONDUCT OF INQUIRIES INTO ALLEGED UNPROFESSIONAL
                                           CONDUCT

_________________________________________________________________________________




Qualifying as a health care professional is a big personal responsibility that comes with several legal
obligations. Registration with the Health Professions Council is a pre-requisite for professional
practice.


The Health Professions Council of South Africa is a statutory body whose function it is to provide
control over the training, registration and practices of health care practitioners. Together with the
twelve Professional Boards that operate under its jurisdiction, it is committed to:


      1.    Promoting the health of South Africa’s population;

      2.    Determining and upholding the standards of professional education and training; and

      3.    Setting and maintaining fair standards of professional practice.




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CONTROL OF PROFESSIONAL CONDUCT


It is the responsibility of the Council and its Professional Boards to ensure that practitioners are fit to
practise, and to investigate any complaints of unprofessional conduct.


The Professional Boards set, maintain and apply fair standards of professional conduct in order to
effectively protect the interests of the public.      They have the power to institute disciplinary
proceedings regarding any complaint, charge or allegation of unprofessional conduct against any
person registered with the Council. If a registered practitioner transgresses the rules laid down by the
relevant Board, the practitioner will be subjected to a disciplinary process in terms of the regulations.
A certain procedure is followed in the disciplinary process.


This procedure is governed by a regulatory framework. Currently the conduct of enquiries into
alleged unprofessional conduct is governed by Regulation 765 of 2001. However the Minister has
recently proposed an amendment of that procedure. The proposed new procedure was published in
the Government Gazette in April 2008 under Regulation 426. Interested persons are invited to
submit any comments by mid-July 2008.


This paper prescribes the proposed new procedure which amends the existing regime in a number of
aspects.   For instance, it regulates the role of an Ombudsman; it makes provision for minor
transgressions; it introduces a committee to assess the performance of a practitioner; and it amends
the time periods to be adhered to.


(1)   LODGING OF COMPLAINTS

A complaint must be addressed to:


      a.    the Ombudsman;

      b.    the Registrar;

      c.    the Council; or

      d.    the relevant Professional Board


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DENEYS REITZ MEDICAL LAW SEMINAR – JUNE 2008
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This complaint must be submitted onwards to the Ombudsman within 24 hours of receipt.


(2)   OMBUDSMAN


The Ombudsman must then categorise the complaints,


      a.   and refer significant and serious complaints to the Registrar for Preliminary
           Investigations within three working days.

      b.   Matters falling outside the jurisdiction of the Council are to be referred to the appropriate
           bodies; and

      c.   The minor cases shall be mediated and adjudicated upon by the Ombudsman. If a
           deadlock is reached, these matters must be referred to the Registrar of Preliminary
           Investigation within three days.


The Ombudsman may, call for any information from any person who may assist in the mediation or
adjudication of the matter. Of interest is that this information is confidential and privileged and
cannot be considered by a committee of preliminary inquiry if the matter is referred to that
committee. The Ombudsman’s decision must be communicated to the parties with a request that they
indicate whether they will abide by the Ombudsman’s decision. If the parties agree to abide by the
adjudication of the Ombudsman, the decision is confirmed in writing and is binding on both parties.


(3)   COMMITTEE OF PRELIMINARY INQUIRY


Upon receipt of a complaint from the Ombudsman, the Registrar of Preliminary Investigations may:


      a.   Call for further information on affidavit from the complainant;

      b.   Notify the respondent about the complaint; or

      c.   Refer the case directly to the Committee of Preliminary Inquiry.




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Where the Registrar notifies the professional of the complaint, the committee must:


      i.     request a written response. If no response is received within forty days, the complaint
             plus any further information available will be forwarded to the Committee for
             Preliminary Inquiry without a response;

      ii.    The Registrar must warn the respondent that the failure to respond constitutes a contempt
             of council; and

      iii.   that any written response may be used a evidence against him.


Upon receipt of the further information (from the complainant) and a written response (from the
respondent), the Registrar must submit that documentation to the Committee of Preliminary Inquiry.


If no response was received from the respondent, the Committee of Preliminary Investigation may
instruct the respondent to appear it to explain why he or she did not respond to the complaint. If the
respondent fails to appear before the Committee, or does attend and the Committee decides that the
respondent is in contempt, it may:


      a.     Make a finding of guilty and impose one of the penalties prescribed in the Act; and

      b.     Order the respondent to submit a written explanation


This finding and the penalty is of immediate force and effect.


If a Committee decides that there are no grounds for taking further action in the matter, it must accept
the explanation of the respondent, and give reasons.


If the Committee however decides that there are grounds for the holding of a Professional Conduct
Inquiry, it must direct that an inquiry be held and may allow for an admission of guilt fine to be paid.


If the Committee decides that the respondent acted unprofessionally, but that the conduct constitutes
a minor transgression, it must impose a suitable penalty. If the penalty is accepted, the respondent
should send proof of compliance together with the notice of acceptance. The matter is thereafter

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regarded as finalised. But if the penalty is rejected by the respondent, the Registrar must arrange for
the holding of a Professional Conduct Inquiry.


If the Committee decides that the conduct complained of constitutes a minor transgression which
reveals evidence or a pattern of poor performance, it may in addition to imposing a penalty, direct
that the matter be referred for a performance assessment. The role of the Performance Assessment
Committee is dealt with in more detail later in this paper.


(4)   APPEAL AGAINST FINDING OF COMMITTEE OF PRELIMINARY INQUIRY


A respondent may appeal against the finding or penalty of the Committee of Preliminary Inquiry to
the Appeal Committee. The appellant must notify the Registrar in writing of the intention to appeal
within 21 days from the date of notification. The Registrar must provide a copy of the minutes of the
meeting and written reasons for the decision. The appellant then files a notice setting out the grounds
of appeal and containing a summary of the argument. The Committee must submit their reply to the
grounds of appeal and summary of the appellant’s argument.


The Appeal Committee must consider the papers on appeal, allow for oral representations and
arguments both by parties. The decision will be of immediate force and effect unless otherwise
determined by the Appeal Committee.          This decision may be set aside by the High Court if
approached in terms of the Act.


(5)   PROFESSIONAL CONDUCT INQUIRY


If the Committee for Preliminary Inquiry decides that the matter should be referred to a professional
conduct inquiry, a notice setting out the details of the inquiry, together with a charge sheet must be
served on the respondent at least 60 days before the date of inquiry.


The respondent may request further particulars to the charge sheet from the pro forma complainant.




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A pre-inquiry conference must take place at least seven days before the inquiry. Here, the respondent
must indicate objections, exceptions and points in limine that he or she intends to raise, and indicate
how he or she intends pleading to the charge sheet. Copies of all documents intended to be used,
including expert opinions, must be exchanged; and admissions may be sought and made.


A pre-inquiry minute signed by both parties must be submitted to the Professional Conduct
Committee.


At the inquiry, the Chairperson must ask the respondent to plead.


If the respondent pleads guilty, the Committee may ask the respondent questions to clarify that all of
the elements of the charge are admitted. If the plea of guilty is accepted, the parties may address the
Committee in mitigation or aggravation of penalty.


If the respondent pleads not guilty, the pro forma complainant may address the Committee and lead
evidence in support of the case. The respondent may then apply for discharge of the complaint. If
the matter is not discharged, the respondent must address the Committee and lead evidence in support
of the defence.


Witnesses are lead, cross-examination and then re-examined. The Committee may question them for
clarity purposes.


After all evidence has been adduced, the pro forma complainant and the respondent may address the
Committee on the evidence and the legal position.


Upon conclusion of the case, the Committee must inform the parties of its decision within a
pre-determined period.


If the respondent is found guilty of unprofessional conduct, the pro forma complainant must furnish
details of previous unprofessional conduct and lead evidence in aggravation of the penalty. The
respondent may thereafter lead evidence in mitigation of the penalty imposed. The finding made and



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DENEYS REITZ MEDICAL LAW SEMINAR – JUNE 2008
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INQUIRIES INTO ALLEGED UNPROFESSIONAL CONDUCT




the penalty imposed by the Professional Conduct Committee is of immediate force and effect, unless
indicated otherwise.


If the Professional Conduct Committee finds that the evidence before it points towards some
elements of poor performance on the part of the respondent, it may in addition to imposing a penalty,
impose practice restrictions and refer the matter to a Performance Assessment Committee. This
Committee enquires into the performance of the respondent and determine the appropriate
management of the respondent.


(6) APPEAL AGAINST THE FINDING OF PROFESSIONAL CONDUCT INQUIRY


The respondent or pro forma complainant may appeal to the Appeal Committee against the findings
and/or penalty of the Professional Conduct Committee by submitting a notice of intention to do so to
the Registrar within twenty-one days from the date of decision. The registrar must provide the
appellant with a copy of the transcript of the proceedings. The appellant submits papers setting out
the grounds of appeal and containing a summary of arguments, to which the respondent must reply.


The Appeal Committee must consider all the papers and allow for representations and arguments
from both parties, before deciding on the appeal. Unless otherwise indicated, the decision of the
Appeal Committee is of immediate force and effect. This decision may be set aside by the High
Court if it is approached in terms of the Act. Each party is responsible for their own costs incurred in
the preparation for and finalization of the appeal.


(7) PERFORMANCE ASSESSMENT


A Performance Assessment Committee comprises of three professionals falling within the same
discipline as the respondent.     When a matter is referred to such an assessment by either the
Committee of Preliminary Inquiry or that of Professional Conduct, a notice setting out the details of
the assessment and the areas where a lack of professional skills has been identified must be served on
the respondent at least 21 days prior to the date of the assessment. The Performance Assessment
Committee determines the manner and duration of the assessment. At the assessment the Committee



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INQUIRIES INTO ALLEGED UNPROFESSIONAL CONDUCT




must ascertain if the respondent has acquired the requisite performance skills to enable him or her to
perform optimally in the practice of the profession.         Upon conclusion of the assessment, the
Committee determines the appropriate management of the respondent and imposes directives to be
adhered to in order to improve skills lacked. Reports are submitted to the Committee to enable them
to make a final determination on the performance of the respondent.


The respondent must adhere to the directives imposed by the Performance Assessment Committee,
failing which the Committee may direct the Registrar to suspend the respondent from practising until
compliance has been fully achieved. However, if the Committee is satisfied that the respondent has
acquired the relevant skills, the practice restrictions imposed by the Professional Conduct Committee
are uplifted.


(8) CONCLUSION


To recap, the proposed new changes introduce a number of new aspects to the procedure, two of the
most important being the office of the Ombudsman and the role of the Performance Assessment
Committee. Whilst it will take some time in getting used to this new procedure, the roles of the key
players are better defined which is likely to have a positive effect on the overall process.


HEATHER WILMOT
ASSOCIATE
DENEYS REITZ INC.




                                                                                               Paper 7_Heather Wilmot.doc

				
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