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[2021] ZASCA 6
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Health Professions Council of South Africa and Others v Grieve (1356/2019) [2021] ZASCA 6 (15 January 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 1356/2019
In
the matter between:
THE
HEALTH PROFESSIONS COUNCIL
OF
SOUTH AFRICA
First Appellant
T
MAFAFO N.O
Second
Appellant
S
RAMASALA N.O
Third
Appellant
and
DR
DAVID STEPHEN GRIEVE
Respondent
Neutral
citation:
The Health Professions Council of South Africa
and Others v Grieve
(1356/2019)
[2021] ZASCA 06
(15 January 2021)
Coram:
DAMBUZA, PLASKET, NICHOLLS JJA, WEINER
and SUTHERLAND AJJA
Heard
:
12 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10H00 on 15 January
2021
Summary:
Administrative Law: Review of decision of the Health Professions
Council of South Africa: allegations that doctor persuaded
patients
to invest in a financially distressed company of which he was a
director and misappropriated moneys invested by patients:
Council the
primary
custos morum
of the health professions:
decision in line with the Council’s supervisory duties over the
health profession: no proper basis
for review.
ORDER
On
appeal from:
Gauteng High Court,
Pretoria
(Khumalo J sitting as court of first instance):
1
The appeal succeeds with costs.
2
The order of the high court is set aside and replaced with the
following order:
‘
1
The
point in limine
is dismissed with costs
2
The matter is remitted to the Professional Conduct Committee’.
JUDGMENT
Dambuza
JA (Plasket, Nicholls JJA, Weiner and Sutherland AJJA concurring)
Introduction
[1]
On 25 November 2014 the respondent, Dr David Grieve, appeared before
the professional conduct committee
(the committee) of the first
appellant, the Health Professions Council of South African (the
Council). He was charged with unprofessional
conduct, it being
alleged, amongst other things, that during the period 2004 to
2009 he improperly persuaded a number of
his patients to invest in a
financially distressed company of which he was a director, and that
he transferred funds invested in
that company to his private bank
account. On the two days that the matter served before the committee
the second and third appellants
acted as chairpersons thereof.
[2]
A
point in limine
raised by Dr Grieves, that the Council
lacked jurisdiction in relation to the subject matter of the charge,
was dismissed by the
committee. After his attempt at lodging an
internal appeal with the Council’s Appeal Committee failed, Dr
Grieves launched
an application, in the Gauteng High Court, Pretoria
(high court, Khumalo J), for review of the Council decision to
institute disciplinary
proceedings against him. The high court
granted an order setting aside the decision of the committee and
upholding Dr Grieve’s
point in limine
. This appeal
against the judgment of the high court is with the leave of this
court.
Background
[3]
Dr Grieve is a general medical practitioner from Centurion, Gauteng.
On 4 August 2014 he received a
notice from the Council, inviting him
to attend a disciplinary inquiry scheduled for the period 24 to 26
November 2014 in relation
to unprofessional conduct charges preferred
against him. He was charged with contravening the norms and standards
of his profession,
alternatively, bringing the good name of his
profession into disrepute by:
(a)
persuading some of his
patients and former patients to invest in a company of which he was a
director when he knew that the company
was in financial distress;
and/or
(b)
transferring funds invested in his company into his
private bank account; and/or
(c)
causing financial prejudice
to the persons concerned who were persuaded to deposit large sums of
money into bank accounts of companies
that were subsequently
liquidated.
[4]
Dr Grieve objected to the committee instituting disciplinary
proceedings against him, asserting,
in limine,
that the
factual allegations that formed the basis of the charges did not
constitute unprofessional conduct as envisaged in the
Health
Professions Act 56 of 1974 (the Act) in that they did not relate to
the ‘health profession’. The committee was
therefore
acting beyond the powers conferred on it in terms of s 49 and did not
have the jurisdiction to prosecute him, so he contended.
The
point
in limine
was dismissed by the committee. Dr Grieves attempted to
appeal against the dismissal of his
point in limine
. However
the Council refused to afford him an appeal hearing, saying that such
procedure was not provided for in the Act. Dr Grieve
then approached
the high court for review of the decision by the Council, through its
committee, to charge him.
[5]
In the high court Dr Grieve persisted in his contention that the
Council had no authority to institute
the disciplinary proceedings as
the conduct complained of did not relate to the health profession. He
also contended that in assuming
jurisdiction over him the Council
concluded, incorrectly, that because in 2010 it had considered
charges similar to his, it had
jurisdiction in respect of the
allegations against him. Similarly irrelevant, according to Dr Grieve
was the premise that because
a report had been made about his conduct
at Lyttleton Police Station, and the matter had become public
knowledge, a public interest
duty arose for the Council to proceed
with the inquiry. In essence the basis for the review was that
the decision to institute
disciplinary proceedings against him and to
dismiss the special plea was not rationally connected to the
empowering provision in
the Act.
[6]
The Council opposed the review application on the basis that it was
premature, having been launched
before the finalization of the merits
of the disciplinary hearing. It was contended on its behalf that both
the internal appeal
that Dr Grieve attempted to lodge against the
dismissal of his
point in limine
and the review proceedings
constituted impermissible piecemeal litigation tactics.
[7]
In upholding the
point in limine
the
high court drew a distinction between Dr Grieve being accused of
having abused the doctor patient relationship with his patients,
which, according to the court, ‘would undoubtedly have put the
health profession into disrepute’ and the allegations
that he
‘persuaded his patients to invest in the companies when he knew
or ought to have known that [they] were in financial
distress’,
which, on the court’s reasoning, was not unprofessional
conduct. It found that the doctor’s conduct
did not relate to
‘treatment’ of his patients, or to the health profession.
It relied on the regulations which define
the Scope and Profession of
Medicine
[1]
and found that the doctor’s conduct did not accord with the
acts relating to the health profession as listed or defined therein.
The high court then concluded that in the circumstances the Council
could only determine whether the doctor’s engagements
with his
patients constituted unprofessional conduct if or when he was
convicted of criminal conduct as provided in s 45 of the
Act.
On
appeal
[8]
Although in his Heads of Argument on appeal Dr Grieve insisted that
the Council did not have the requisite
jurisdiction, this stance was
abandoned at the hearing of the appeal. Instead it was submitted on
his behalf that the charges lacked
the necessary particularity, such
as the names of the investor patients and the companies in which they
invested. However, that
is not the case that was brought before the
high court. Furthermore, as submitted on behalf of the Council, the
doctor never sought
any further particulars to the charges.
[9]
Be that as it may, the concession was correctly made. Dr Grieve’s
counsel accepted that the conduct
complained of fell within the
jurisdiction of the Council. Section 41(1) of the Act confers power
on the Professional Boards of
Council to ‘institute an inquiry
into any complaint, charge or allegation of unprofessional conduct
against any person registered
under the Act’. It was common
cause that Dr Grieve was a registered health practitioner with the
Council in terms of the
Act. The committee is a Professional Board
appointed by the Council in terms of s 15 of the Act. The only issue
was whether the
conduct complained of, if proved, would constitute
unprofessional conduct.
[10]
Unprofessional conduct is defined in the Act as ‘improper or
disgraceful or dishonourable or unworthy conduct
or conduct which,
when regard is had to the profession of a person who is registered in
terms of this Act is improper or dishonourable
or unworthy’.
[2]
This definition is broad, and nothing in it supports the contention
that the Council’s jurisdiction is confined to the conduct
of
rendering of health services.
[11]
Contrary to the limited disciplinary powers which Dr Grieve contended
for, in terms of the Act the Council bears
extensive supervisory
functions which include: protection of the public from conduct
arising during the rendering of health services
[3]
;
maintenance of professional and ethical standards within the
profession
[4]
;
ensuring that investigation of complaints concerning persons
registered in terms of the Act are done and that appropriate
disciplinary
action is taken against such persons in accordance
with the Act in order to protect the interests of the public
[5]
;
and ensuring that persons registered in terms of the Act behave
towards users of health services in a manner that respects their
constitutional rights to human dignity, bodily and psychological
integrity and equality, and that disciplinary action is taken
against
persons who fail to act accordingly.
[6]
In addition, the functions of the Professional Bodies include the
maintenance and enhancement of the health profession and the
integrity of persons practising such profession, guiding the relevant
health professions, and protection of members of the public.
[7]
[12]
The Council is therefore not merely a medical malpractice watchdog;
it is also the primary guardian of morals of
the health
profession.
[8]
As this court held in
Preddy and Another v
Health Professions Council of South Africa
[9]
:
‘
It has been said of the various predecessors of
the council that each was the repository of power to make findings
about what is
ethical and unethical in the medical practice and the
body
par excellence
to set the standard of honour to which its
members should conform’.
[13]
In
Preddy
the appellants, both specialist medical
practitioners registered with the Council in terms of the Act, had
been found guilty of
unprofessional conduct arising from receiving
kickbacks in return for referring patients to a particular radiology
firm.
The Disciplinary Committee of Council found the receipt of the
‘perverse incentives’ by the doctors to be disgraceful
conduct. The condemned conduct in
Preddy
did not relate to the
practice of medicine. It was also not a listed prohibited form of
conduct under the regulations. But it was
found to be morally and
ethically reprehensible because the medical practitioners concerned
had used their access to the relevant
patient to make undue financial
gains (in addition to the professional fees due to them for their
services). In the appeal before
us the allegations are, in essence,
that Dr Grieve used his access to his patients to benefit himself and
his companies unduly,
to the prejudice of the patients. If the
allegations are proved, the misconduct in this case could be more
serious than in
Preddy
.
[14]
Should the Council have awaited the results of criminal prosecution?
Indeed a criminal conviction may trigger disciplinary
proceedings by
the Council or Professional Board as provided in s 45 of the Act.
However the Council’s disciplinary functions
are not limited to
instances where there has been criminal conviction. It is the
Council’s duty to act against conduct
that is improper,
unethical, dishonourable, disgraceful and unworthy. Conduct may be
unethical without being criminal. And criminal
prosecution may result
in an acquittal for reasons other than the innocence of the
respondent or accused. The Council remains obliged
to discharge its
duties as the moral compass of the health profession. For example, in
De Beer
[10]
this court confirmed the increase, by the Council, of a penalty that
had been recommended by the disciplinary committee, against
a doctor
who had sexually abused his patient.
[11]
The Council’s decision in
De Beer
was
not premised on a criminal conviction. It was an incidence of the
Council’s initiative in fulfilment of its
custos
morum
responsibility.
[15]
In this case the allegations were that unprofessional conduct
occurred within a doctor-patient relationship. The
Council as the
administrative body charged with the function of defining the norms
and standards, and monitoring adherence to the
ethical prescripts of
the medical profession, was the primary repository of disciplinary
power in relation to unethical conduct
by its registered members.
[16]
The fact that the conduct complained of was not defined or listed in
the regulations did not detract from the Council’s
administrative powers in respect of other conduct that it reasonably
considered to be unprofessional. Indeed s 49 of the Act provides
for
specification of acts or omissions in respect of which the Council
may take disciplinary action. However, the matter does not
end there
because the section also provides that the powers of the Council
shall not be limited to the specified acts. It reads
as follows:
‘
The Council shall, in consultation with the
Professional Board, from time to time, make rules specifying the acts
or omissions in
respect of which the Professional Board may take
disciplinary steps under this Chapter; provided that the powers of
the Professional
Board to inquire into and deal with any complaint,
charge or allegation relating to a health profession under this
Chapter,
shall not be limited to the acts or omission so
specified’
. (emphasis supplied)
[17]
In the end, the two jurisdictional bases for the exercise of the
Council’s disciplinary authority are registration,
by the
health professional concerned, with the Council and allegations
which, if proved, would constitute improper, or disgraceful
or
dishonourable or unworthy conduct. In some instances, such as this
case, a doctor-patient relationship will be a feature of
the alleged
conduct. However, such a relationship is not a prerequisite for
the council’s jurisdiction.
[18]
In this case it was submitted on behalf of the Council that the
allegations made against Dr Grieve, if proved,
would constitute
unprofessional conduct; hence the decision to institute disciplinary
proceedings. I agree that the decision to
institute disciplinary
proceedings was rational and within the powers of Council.
[19]
Consequently:
1
The appeal is upheld with costs including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following:
‘
1 The
point in
limine
is dismissed with costs.
2 The matter is
remitted to the Professional Conduct Committee’.
________________________
N
DAMBUZA
JUDGE
OF APPEAL
Appearances
For
Appellant:
J G Rautenbach SC (with him B
Maphosa)
Instructed
by:
Mkhonto Ngwenya Incorporated,
Pretoria
Phalatsi & Partners, Bloemfontein
For
the
Respondent:
H F Jacobs SC (with him D E Hugo)
Instructed
by:
Hills Incorporated,
Pretoria
Kramer
Weighmann and Joubert Inc
.,
Bloemfontein.
[1]
Issued under Government Notice R237 published on 6 March 2009 in
Government Gazette 31958 in terms of s 33(1) read with s 61(2)
of
the Act.
[2]
Section 1 of the Act.
[3]
Section 3(j) of the Act.
[4]
Section 3(m) of the Act.
[5]
Section 3(n) of the Act.
[6]
Section 3(o) of the Act.
[7]
Subsections 15A
(g)
and
(h)
.
[8]
De Beer v Health
Professions Council of South Africa
2007(2)
SA 502 (SCA);
Veriava
and Others v President SA Medical and Dental Council and Others
1985
(2) SA 293 (T).
[9]
Preddy and Another v
Health Professions Council of South Africa
2008
(4) SA 434
(SCA) para [6].
[10]
Fn 8
s
upra.
[11]
Ibid