1 August 2022


International Cases

The Health Professions Council of South Africa and Others vs. Grieve

South Africa

15.01.2021

Civil

Council’s disciplinary functions are not limited to instances relating to criminal conviction; it is the Council’s duty to act against conduct that is improper, unethical

In present matter, 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 was alleged 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. 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 High Court 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.

Unprofessional conduct is defined in the Health Professions Act, 1974 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’. 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.

Indeed a criminal conviction may trigger disciplinary proceedings by the Council or Professional Board as provided in Section 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.

In present 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.

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 Section 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.

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. The decision to institute disciplinary proceedings were rational and within the powers of Council. The order of the high court is set aside. The point in limine is dismissed with costs. The matter is remitted to the Professional Conduct Committee.

Tags : Council Jurisdiction Disciplinary proceedings

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