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[2016] ZAGPPHC 617
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Netcare Hospitals (Proprietary) Limited v Health Professions Council of South Africa and Others (A480/2014) [2016] ZAGPPHC 617 (28 April 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: A480/2014
(1)
REPORTABLE: YES
OF
INTEREST TO OTHERS JUDGES: YES
Heard
on: 17 March 2016
Judgment
on: 28 April 2016
In
the matter between:
NETCARE
HOSPITALS (PROPRIETARY)
LIMITED Appellant
and
THE
HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA
First
Respondent
THE
CHAIRPERSON OF THE UNDESIRABLE BUSINESS
PRACTICE
COMMITTEE Second
Respondent
THE
MINISTER OF
HEALTH Third
Respondent
THE
MINISTER OF JUSTICE AND CORRECTIONAL SERVICE Fourth
Respondent
JUDGMENT
Canca
AJ
INTRODUCTION
[1]
Two matters serve before us for determination, an appeal and a
review.
[2]
In the first matter, the appellant, Netcare Hospitals (Proprietary)
Limited ("Netcare") appeals a decision in terms
whereof
Netcare was denied accreditation to employ radio therapists and
medical physicists at those of its hospitals that provide
oncology
health services. The decision was taken by virtue of powers delegated
to it by the Health Professions Council of South
Africa ("HPCSA").
[3]
The appeal is brought in terms of the provisions of section 20 of the
Health Professions Act, 56 of 1974 ("the Act")
[1]
Netcare prays that the appeal be upheld and that the decision of the
Committee, and a
fortiori
of the
HPCSA, refusing the accreditation application, be set aside and be
replaced by a decision approving the application.
[4]
The Committee is a sub-committee of the HPCSA and was established in
terms of section 10 of the Act at a meeting of the HPCSA
held on 10
and 11 May 2004. A decision of the Committee is, by virtue of the
delegation of powers, a decision by the HPCSA.
[5]
In the second matter, Netcare, together with the second and third
applicants, respectively employed as a medical physicist and
a
radiotherapist by Netcare, apply that the appeal be heard together
with an associated review application brought in terms of
the
provisions of the Promotion of Administrative Justice Act, 3 of 2000
("PAJA"). The purpose of the review application
is to
obtain an Order reviewing and setting aside the decision of the
Committee to deny Netcare the requisite accreditation to
employ
medical physicists and radiotherapists.
[6]
The first and second respondents oppose both matters on various
grounds including that the Committee properly exercised the
discretion granted to it by subordinate legislation
[2]
when it refused Netcare accreditation to employ the aforementioned
healthcare workers. Although the third and fourth respondents
filed a
Notice of Intention to Oppose, they did not file any other papers nor
were they represented at the hearing of these matters.
BRIEF
LEGISLATIVE FRAMEWORK
[7]
The Act governs the conduct of the professional activities of health
professionals within the South African health care sector.
The HPCSA,
a statutory body established under the Act, requires healthcare
professionals, including practitioners such as medical
physicists and
radiotherapists, to be registered as such in terms of the Act. These
practitioners are subject to the authority
and professional control
of the HPCSA.
[8]
Acting under the powers afforded to it in terms of Section 49 read
with Section 61 (2) and Section 61 A (2) of the Act to make
rules or
to adopt policies relating to any matter which, in terms of the Act,
is required to be or may be promulgated as rules,
the HPCSA published
the Ethical Rules of Conduct for Practitioners Registered under the
Health Professions Act, 1974 ("the
Ethical Rules"). The
Ethical Rules appeared in Government Notice R717 in Government
Gazette 29079 of 4 August 2006.
[9]
The Ethical Rules set out the ethical guidelines to which
practitioners registered under the HPCSA must adhere and, inter alia,
regulate the manner in which they may operate their practices and the
various forms the practitioners may use to conduct those
practices.
[10]
The Schedule to the Ethical Rules contains, amongst other things,
Rules 8 and 18. Rule 8 of the Ethical Rules sets out the
forms of
practice in which a healthcare professional may conduct his or her
profession. This rule also provides that a practitioner
is not
permitted to practise in any form of practice which has inherent
requirements or conditions that violate or may violate
any of its
sub-rules or an annexure to those rules. Rule 18, provides,
inter
alia,
that a non-practitioner can only employ a healthcare
practitioner registered with the HPCSA if the non-practitioner is
accredited
by the HPCSA and only if the employment contract of that
practitioner complies with the provisions of Rule 18.
[11]
The effect of Rule 18 is that an unregistered employer, such as
Netcare should obtain accreditation from the HPCSA to employ
healthcare professionals. Once accredited, the employer may employ
such practitioners provided that it does so in accordance with
written employment contracts that comply with Rule 18. Accepting
employment with an employer that is not accredited amounts to
unprofessional or unethical conduct by the practitioner, which
conduct may be visited with a sanction of a suspension or removal
from the Register of Practitioners by the HPCSA.
[12]
Netcare is not accredited to employ medical physicists and
radiotherapists. Consequently, having accepted employment with
Netcare since 2010 and 1989 respectively, the second and third
applicants, may be liable to a charge of unprofessional or unethical
conduct and possibly removal from the Register of Practitioners.
[13]
In an endeavour to regulate business practices within the healthcare
profession, the HPCSA published the Policy Document on
Undesirable
Business Practices ("the Policy Document") in 2005. This
Policy Document deals, amongst other things, at
paragraph 2.2.2, with
the issue of the employment of registered practitioners by parties
who are not registered practitioners and
provides a route for such
parties to follow in order to be allowed to employ registered
practitioners. It also seeks to distinguish
between those business
practices that are desirable or beneficial to patients and those that
are not.
[14]
The provisions of paragraph 2.2.2 of the Policy Document which are
relevant for purposes of this judgment, provide that:
"As
a
basis for considering these applications [the employment of
practitioners by non-practitioners], the motive for the proposed
employment
should be carefully considered. If the motive is to
generate income to the employer, or to remunerate the employee on
a
fee-sharing basis, it should not be approved."
and
"If
employment of practitioners is approved, applications for employment
should be carefully considered taking the following
criteria into
consideration:
1.
Motive or Goal: This should indicate the reason for employment.
2.
Service to specific groups of people: Such as non-profit,
charitable and similar organisations. Private Hospitals should not be
allowed to employ because of a profit motive.
3.
Training
of students: Such as at Universities set out above.
4.
Clinical independence of practitioner: Practitioners should refrain
from engaging in practices that would compromise patient
care or in
services not indicated in order to acquire financial or material
benefit. No undue influence should be exerted on [a]
practitioner to
compromise his clinical independence.
5.
Method of remuneration: There should be no Perverse Incentives.
Undesirable practice enriching a practitioner either financially
or
in kind at the cost of a payer for professional practice with no
evidence based scientific basis or cost effective considerations.
Furthermore,
all employing institutions should be accredited by the HPCSA subject
to the condition that the practitioner's clinical
independence is not
violated by the employing body and that the employing body does not
exploit the practitioner or make the practitioner
to violate Council
ethical rules."
The
legal effect of the criteria contained in these provisions is dealt
with in paragraph 32 below.
[15]
The Committee is tasked with the implementation of the Policy
Document and the assessment of applications made to the HPCSA
in
respect of matters which are covered by the Policy Document.
[16]
A person who is aggrieved by a decision of the HPCSA, a professional
board or a disciplinary appeal committee is entitled,
in terms of the
provisions of Section 20 of the Act, to appeal directly to the High
Court against such a decision, within a month
of the decision having
been made.
BACKGROUND
FACTS
[17]
Netcare owns 54 private hospitals in South Africa, of which seven
have oncology units dedicated to the treatment of malignancies
and
the provision of oncology health care services. Netcare has employed
medical physicists and radiotherapists for more than a
decade in
order to offer the aforementioned services at those hospitals.
[18]
Acting in accordance with the provisions of the Policy Document,
Netcare applied for accreditation to employ radiotherapists
and
medical physicists on 31 January 2014. The application was fairly
comprehensive. I set out hereunder the salient factual averments
that
were placed before the Committee, namely that:
18.1
The treatment provided by the oncology units is in accordance with
Internationally accepted protocols and applies advanced
technology;
18.2
The patients in those units are treated by a team led by an
oncologist. The team is interconnected and the radiotherapist and
medical physicist cannot by themselves initiate treatment of a
patient;
18.3
A patient's treatment protocol is determined by the oncologist, who
is not employed by Netcare and is subject to the discipline
and
control (including the ethical constraints and professional
responsibilities) of the HPCSA. Furthermore, it is the oncologist
who
determines the treatment protocol. The radiotherapist and medical
physicist do not determine whether a patient receives treatment
at
all or how much treatment the patient should receive;
18.4
Netcare is uninvolved in the treatment processes and because the
radiotherapists and medical physicists do not determine if
a patient
should be treated or what treatment he or she should receive, Netcare
cannot exercise any indirect control over the treatment.
Nor can
Netcare direct, via any control it might have over radiotherapists
and medical physicists employed by it, that treatment
should be
initiated or the extent thereof. Consequently, Netcare cannot
manipulate the radiotherapists or medical physicists to
gain any
financial advantage for itself;
18.5
The radiotherapists and medical physicists are salaried employees
whose remuneration is based on experience and qualifications.
They do
not receive commission or volume based bonuses;
18.6
Netcare is affiliated to a number of tertiary institutions where it
assists and contributes towards the training of students
in the field
of radiotherapy, medical physics and oncology;
18.7
The cost of establishing an independent oncology centre is beyond the
capacity of most individuals, given that the cost of
establishing
such a centre is in the vicinity of R32 million; and
18.8
Being employed by Netcare will give the medical physicists and
radiotherapists greater benefits than having to work as consultants
or private practitioners. These benefits include, for example,
regular working hours, job security, paid leave including holiday
leave, the benefits of collective bargaining, medical aid, maternity
leave and contributions to the practitioners' Unemployment
Insurance
Fund in terms of the
Unemployment Insurance Contributions Act 4 of
2002
, as amended.
Netcare
concluded its application by stating that it had met the requirements
set out in the Policy Document and that it ought therefore
to be
granted the accreditation sought.
[19]
The Committee considered the application on 19 March 2014 and
resolved not to approve it. Mr Sipeka, an official in the HPCSA'
Secretariat, conveyed the Committee's decision to Netcare in a letter
dated 5 May 2014, the relevant portions of which read as
follows :
"Dear
Mr Craig Grindell,
APPLICATION
FOR ACCREDITATION TO EMPLOY MEDICAL PRACTITIONERS: NETCARE HOSPITAL
We
refer to the abovementioned matter and wish to advise that the
Undesirable Business Practices Committee at its meeting held on
19
March 2014 noted your application requesting accreditation to employ
radiotherapists and medical physicists who are both registered
in
terms of the Health Professions Act No. 54 of 1974.
The
Committee upon deliberations resolved not to approve your application
as
employment of practitioners by corporate entities is
against the HPCSA
's
ethical framework. Such approval is in
certain instances only conferred for emergency purposes and upon
thorough [scrutiny] of your
matter the Committee did not establish
any emergency care required [sic].
In
the light of the aforesaid it is therefore recommended that Netcare
hospital should engage practitioners
as
service providers
wherein
a
service level agreement would be signed with
Radiotherapists and Medical Physicists
as
opposed to an
employer-employee relationship. Once
a
service level agreement
is reached and signed, the Committee should be furnished with
a
copy thereof."
[20]
Dissatisfied with the contents of the Committee's aforesaid letter,
Netcare sought, initially without success, to obtain further
information and reasons from the Committee for the refusal of the
application. It was only when Netcare submitted a request for
the
said information in terms of the provisions of the
Promotion of
Access to Information Act, 2 of 2000
that the HPCSA provided the
minutes of the Committee's meeting where the application was
considered and refused.
[21]
The minutes do not reveal that the Committee, apart from considering
the application itself, considered any extraneous evidence,
nor that
any of the factual averments set out in the application were
contested or placed in issue. The following outcome is reflected
in
the minutes:
"
The Committee resolved not to approve Netcare Hospitals Limited
application to employ Radiologists [sic] and Medical Physicists
on
the following basis:
(i)
that Netcare Hospitals should regularize its policy relating to the
employment of healthcare professionals to ensure that it
is in line
with the existing HPCSA ethical rules;
(ii)
the Committee did not establish any emergency care required in the
service provided by these medical practitioners and recommends
that
they should sign service level agreements with these medical
practitioners;
(iii)
these medical practitioners are able to work independently and still
provide the required services to the hospital group."
[22]
Netcare, having been afforded an extension of time within which to
lodge an appeal by the HPCSA, then duly noted an appeal
against the
decision handed down by the Committee.
[23]
It is convenient to set out Netcare's grounds of appeal in full.
These are the following:
"
1. the Committee and
a
fortiori, the First Respondent, erred
in rejecting the appellant's application dated 31 January 2014 to
employ radiotherapists and
medical physicists ('the application'? ;
2.
the Committee and
a
fortiori, the First Respondent, erred in
holding that the clause
2.2.2 of the provisions of its Policy
Document on Undesirable Business Practices ("the UBP Policy”)
was only applicable
in cases of emergency;
3.
the Committee and
a
fortiori, the First Respondent, erred in
concluding that the appellant's application is against the first
respondent's ethical framework;
4.
the Committee and
a
fortiori, the First Respondent erred in
applying its UBP restrictively, alternatively, erred in failing to
take into account all
the considerations
contained
in its UBP Policy when making the decision, alternatively and in so
far as such considerations were taken into account,
erred in
concluding that appellant's application would be in contravention
thereof,"
5.
the Committee and
a
fortiori, the First Respondent, erred
in finding that the radiotherapists and the medical physicists sought
to be employed by the
appellant are able to work independently;
6.
the Committee and
a
fortiori, the First Respondent, erred in
determining that service level agreements with radiotherapists and
medical physicists was
preferable to employment contracts with such
radiotherapists and medical physicists."
[24]
At the hearing, we directed that the appeal and the review
application could be argued simultaneously as the issues are
interlinked.
The two matters were then argued together. I set out
hereunder that portion of the argument that deals with the appeal.
THE
APPEAL
[25]
It is trite law that the appeal to the High Court created by section
20 of the Act is
"
...an appeal in the ordinary sense, ie
a
rehearing on the
merits but limited to the evidence or information on which the
decision under appeal was given, and in which the
only determination
is whether the decision was right or wrong."
See
the dictum of Van Heerden JA in
Health Professions Council of SA v
De Bruin
[2004] 4 All SA 392
(SCA) par [23]. The learned Judge
goes on to state that the Court hearing such an appeal should give
due weight to the fact that
the HPCSA, being mainly composed of
members of the healthcare profession who know and appreciate the
standards demanded of it,
has a distinct advantage over a Court in
the consideration and standards to be maintained by those
practitioners. Van Heerden JA
also held that a court of appeal should
not hesitate to interfere with decisions of the HPCSA when
interference was warranted by
the principles governing appeals. Also
see
Emergency Medical Supplies and Training
CC
(Trading
as
EMS) v Health Professions Council of SA and Another
[2013] 4
All SA 1
(SCA) paragraphs [8] and [11] where Mthiyane DP confirmed
that the appeal created by Section 20 was an appeal in the ordinary
sense.
[26]
Based on the abovementioned authorities, Mr Leech SC, for the
appellant, correctly in my view, argued that, for purposes of
this
appeal, the merits of Netcare's case must be decided on the basis of
the appeal record and the information that was before
the Committee
when it took its decision. There is no evidence that any information,
other than that contained in Netcare's application,
was placed before
the Committee. Nor does it appear that the veracity of Netcare's
information was ever challenged. It is therefore
fair to assume that
the Committee accepted that information to be correct.
[27]
Given that the appeal created by section 20 of the Act is an appeal
in the ordinary sense, I must now consider the grounds
advanced by
Netcare on the merits.
THE
MERITS
[28]
The main issue for consideration is whether the Committee, having
regard to the information before it, the provisions of paragraph
2.2.2 of the Policy Document, the relevant statutes and the
provisions of the Constitution, was correct in denying Netcare
accreditation
to employ radiotherapists and medical physicists at its
oncology centres.
[29]
I have already set out in paragraph 18 above Netcare's motivation to
the Committee for it to be granted the requisite accreditation.
[30]
Despite the fact that,
prima
facie,
the
application appeared to comply with the Ethical Rules and the
criterion set out in the Policy Document, save for the statement
that
private hospitals should not be allowed to employ practitioners
because of their profit motive
[3]
,
the Committee turned the application down for the reasons set out in
paragraphs 19 and 21 above. It is worth noting that it is
not clear
from the record whether the reasons set out in the letter quoted in
paragraph 19 above, which go beyond what is stated
in the minutes of
the Committee's meeting, are the reasons that motivated the
Committee's decision or whether they are merely the
opinion of Mr
Sipeka, the author of the letter.
[31]
Mr Leech SC contends that the Committee misdirected itself on the
nature of the discretion that it was called upon to exercise
and
urges us to set the Committee's decision aside and to consider the
matter on its merits. He argues that:
31.1
With respect to the first reason given by the Committee for
rejecting the application, namely that Netcare should regularise
its
policies with regard to the employment of healthcare practitioners
and bring those policies in line with the HPCSA's ethical
rules, the
Netcare application was itself one in terms of which it sought,
amongst other things, to align its policies with the
Ethical Rules
and the Policy Document in respect of its employment of registered
radiotherapists and medical physicists. Consequently,
so the argument
continues, to the extent that the Committee suggests that is what
Netcare should do, that reason is illogical and
amounts to a
non
sequitur,
31.2
In this case, the criterion of "emergency care" is
extraneous to the discretionary elements set out in the Policy
Document and that the Committee mistakenly elevated that criterion to
an absolute and a determinative requirement;
31.3
The issue of whether or not medical physicists and radiotherapists
could work independently of Netcare and still provide the
service was
irrelevant to the criteria set out in paragraph 2.2.2 of the Policy
Document. What the Committee had to determine,
so the argument
continued, was whether or not there was any reason that prevented
those practitioners from being employed by Netcare
and not whether
they should be required to work independently from Netcare.
[32]
A careful reading of paragraph 2.2.2 of the Policy Document gives the
impression that the Committee is required to weigh a
number of
factors to decide whether an application should be approved. I agree
with Mr Leech SC that the Policy Document is not
a checklist. It is
merely a guide to the Committee on the exercise of its discretion.
The drafters of the Policy Document, in my
view, could not have
contemplated that the criteria in paragraph 2.2.2 are, in and of
themselves, decisive.
[33]
The respondents have not challenged the contents of the Appeal Record
as being deficient or on the basis that the Appeal Record
has omitted
information or the documentation that served before the Committee.
Their response to Netcare's contentions is simply
that the Committee
has been granted a wide discretion in reaching its decisions and,
because the appellant has failed to prove
that the Committee's
decision was either capricious, biased, was based on a wrong
principle or was taken without substantial reasons,
this Court
cannot, on appeal, interfere with the decision. In support of this
stance, the respondents rely on the dictum of Cloete
JA in
Naylor
and Another v Jansen
2007 (1) SA 16
(SCA) at 23 G and 24 B.
[34]
I am not convinced that
Naylor
is of assistance to the
respondents in this matter.
Naylor
deals with a discretion in
the narrow or strict sense whilst in the present case the discretion
which has to be exercised, as I
will show hereunder, is a broad one,
where we are at liberty to decide the matter on our own view of the
merits as gleaned from
the facts contained in the record.
[35]
The difference between a narrow and broad discretion was dealt with
by Brand JA in
MTN Service Provider (PTY) LTD v AFRO Call (PTY)
LTD
2007 (6) SA 620
at 623 E-H. The learned Judge referred to the
case of
Media Workers Association of South Africa and Others v
Press Corporation of South Africa Ltd ("Perskor')
[1992] ZASCA 149
;
1992 (4)
SA 791
(A) at 796 H-1 and 800 E-G where Grosskopf JA arrived at the
conclusion that the term "discretion" has more than one
meaning. Brand JA proceeded to explain the conclusion as follows;
"
On a proper analysis of earlier case, he [Grosskopf JA] said, the
restraint on an appellate Court's powers of interference
only applies
to a discretion in the strict or narrow sense and not to a
'discretion' in the broad sense, also described as a 'discretion
loosely so called'. A discretion in the strict sense, Grosskopf JA
explained, involves a choice between different but equally admissible
alternatives, while a 'discretion' in the broad sense
-
or
loosely so called
-
means no more than is a mandate to have
regard to a number of disparate and incommensurable features in
arriving at a conclusion.
When used in the broad sense, Grosskopf JA
found, there is no reason why the appellate court should not exercise
its own discretion
by deciding the matter according to its own view
of the merits. It is only in regard to discretion in the strict sense
that the
appellate court's powers of interference are to be
circumscribed."
[36]
A careful reading of the second paragraph of Mr Sipeka's letter to
Netcare's Mr Craig Grindell (referred to in paragraph 19
above) and
the second paragraph of the minutes (referred to in paragraph 21
above) leads to a conclusion that one of the reasons
for turning down
Netcare might not have been the merits of its application but rather
HPCSA's policy not to accredit private hospitals
because they operate
for profit.
[37]
Mr Leech SC further contended that this stance of the respondents,
with regard to private hospitals, is difficult to reconcile
with its
position relative to registered healthcare practitioners who carry on
private practices. These practitioners are entitled
to employ other
healthcare professionals yet in both instances the profit motive is
present. I agree.
[38]
A reason for this stance might be that, if an employer is also a
practitioner registered with the HPCSA, that employer would
be
subject to its Ethical Rules and jurisdiction. That would not be the
case with a private hospital.
Even
if that was so, in the light of all the facts in this case, that
would not have been a sufficient justification to reject the
Netcare
application.
[39]
The Committee's stance with respect to private hospitals and
practitioners in private practice, given that both are in business
to
make a profit, defies logic. The criterion that private hospitals
should not employ practitioners because of their profit motive,
save
were the practitioners are employed to undertake emergency services,
is possibly unconstitutional as it unfairly discriminates
against
private hospitals merely because they are profit driven
organisations. Yet practitioners in private practise, who are also
profit driven, are allowed to employ other healthcare professionals
registered with the HPCSA. I doubt whether it could ever have
been
the Legislature's intention to clothe the HPCSA with the power to
deny private hospitals the right to employ practitioners
such as
medical physicists and radiotherapists merely because such hospitals
are profit driven.
[40]
The second reason for the refusal, namely, that the application was
not intended to provide emergency services, is not a requirement
specified in the Policy Document or in the Act. The Committee
apparently erred in concluding that such approval or accreditation
is
only given to private hospitals when the application is for the
provision of emergency care. The Committee failed to give due
weight
to the other criteria set out in the Policy Document referred to in
paragraph 14 above in reaching its decision.
[41]
In arriving at the third reason for refusing the application, namely
that these practitioners are able to practise independently,
it would
appear that the Committee failed to consider the information
regarding the high costs of an independent oncology practice
referred
to in paragraph 18.7 above.
Moreover,
it appears that the Committee also failed to consider Netcare's
submissions on how the employment arrangements with practitioners
in
its oncology centres do not infringe the Ethical Rules and that they
benefit both practitioners and patients.
[42]
I am satisfied that Netcare's application for accreditation, the
salient features of which are set out in paragraph 18 above,
contains
sufficient information to dispel any notion that the employment of
medical physicists and radiotherapists in circumstances
set forth in
the Netcare application could harm patients or expose them to
increased costs or overtreatment. Also, on the facts
set out in the
record, there is no evidence that the practitioners' clinical
independence, ethical or professional responsibilities
and duties
would be compromised by their employment with Netcare. On the
contrary, the medical physicists and radiotherapists already
employed
by Netcare, some of whom have enjoyed employment benefits and job
security for very long periods, would be jeopardized
as Netcare would
have to dismiss them in the event that it is unsuccessful in having
the HPCSA and the Committee's decision overturned.
[43]
It is worth noting that, even if Netcare is accredited to employ
medical physicists and radiotherapists, the terms of their
employment
will, according to Rule 18 of the Ethical Rules, still have to be in
accordance with a written contract drawn up on
a basis which is in
the interests of the public and the profession. The HPCSA is entitled
to inspect the contracts to make sure
that the interests of the
public and the profession are not jeopardized.
[44]
When the material facts which served before the Committee are viewed
against the criteria contained in paragraph 2.2.2 of the
Policy
Document, it is hard not to conclude that the Committee misdirected
itself by giving undue weight to the fact that there
is no emergency
care involved in the Netcare application, and requiring that medical
physicists and radiotherapists should work
independently for Netcare,
disregarding the benefits of direct employment and the fact that such
employment would not, on the facts
before the Committee, affect the
treatment protocol or jeopardize the interests of any patient.
[45]
The Committee and a
fortiori
the HPCSA erred in concluding
that Netcare's employment policies were against the Ethical Rules.
The Committee and a
fortiori
the HPCSA also erred in applying
the provisions of the Policy Document restrictively. The Committee
should have taken into account
and weighed all the criteria contained
in that document when making its decision.
[46]
In the light of the above, I find that the HPCSA and the Committee
misdirected themselves as to the nature of the discretion
the
Committee was called on to exercise in that the Committee gave
unwarranted weight to some facts and ignored others.
[47]
I also find that we are in as good a position as the Committee to
judge the facts as the Committee decided the Netcare application
on
paper. As I disagree with the Committee and a
fortiori
HPCSA's
decision on the merits of the Netcare application, I am of the view,
based on
Perskor supra,
par [35] above, that our discretion is
broad because it does not involve a choice between different
permissible alternatives, but
rather a judgment to be made in the
light of all the relevant circumstances. We are therefore entitled to
interfere with the Committee's
decision to turn the Netcare
application down.
[48]
Given my conclusion on the merits of the appeal, I find that the
necessity to rule on the review application has become redundant.
For
the guidance of the Taxing Master, I record that equal time was spent
during the hearing of the matter on hearing argument
on the appeal
and on hearing argument on the review application.
[49]
In the event, I propose the following order:
1.
The appeal is upheld. The first respondent is ordered to pay the
costs of the appeal including the costs consequent on the employ
of
two counsel.
2.
The decision of the Undesirable Business Practices Committee and a
fortiori
of the Health Professions Council of South Africa to
reject the Appellant's application dated 31 January 2014 to employ
medical
physicists and radiotherapists, is set aside. In its place
there is substituted:
"Netcare
Hospitals (Proprietary) Limited is hereby accredited to employ
medical physicists and radiotherapists registered with
the Health
Professions Council of South Africa at those of its hospitals that
provide oncology health care services, in accordance
with employment
contracts which comply with Rule 18 contained in the Schedule to the
Ethical Rules of Conduct for Practitioners
Registered under the
Health Professions Act, 56 of 1974."
3.
The review application, case no. 71745/2014, is removed from the
roll. No order as to costs.
_________________
M.P
CANCA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA (ACTING)
GAUTENG
DIVISION, PRETORIA
I
agree,
___________________________
N
JANSE VAN NIEUWENHUIZEN J
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
For
the Appellant/Applicants:
BE
Leech SC and MA Chohan SC
Instructed
by:
Werksmans
Attorneys, Sandton.
For
the First and Second Respondents:
H.N
Maenetja SC and K Mokotedi
Instructed
by:
Gildenhuys
Malatji Attorneys,Pretoria.
For
the Third and Fourth Respondents:
The
State Attorney, Pretoria
[1]
Section 20 of the Act provides that:
"(1) Any person
who is aggrieved by any decision of the council, a professional
board or a disciplinary appeal committee,
may appeal to the
appropriate High Court against such decision.
(2) Notice of Appeal
must be given within one month from the date on which such decision
was given."
[2]
The relevant subordinate legislation is The Ethical Rules referred
to in paragraph 8 below.
[3]
See criterion 2 in paragraph 14 above.