De Beer v Health Professions Council of South Africa

• Judge: Patel J and Maluleke J
• Judgment Date: 24 March 2004
• Citation: 2005 (1) SA 332 (T)
• Docket Number: A815/2002
• Counsel: S Joubert for the appellant. S K Hassim for the respondent.
• Court: Transvaal Provincial Division

Patel J: E

A Introduction

[1] This is an appeal by Dr Frederik de Beer, in terms of s 20 of the Health Professions Act 56 of 1974 (the HPA), against the F decision of the Medical and Dental Professional Board (the Board) of the Health Professions Council of South Africa. The appeal is only against the Board's decision that the appellant's name should be erased from the register of medical practitioners, in consequence of a determination by the Board's Professional Conduct Committee (the Committee) that he was guilty of unprofessional conduct of a disgraceful nature in that he sexually abused a patient, Mrs Avril Joy G McIntyre, and thereby abused the position of trust between physician and patient.

[2] Although the appellant set 48 elaborate grounds of appeal, in essence the main thrust in this appeal are three points. First, the Board should have confirmed the sanction of staying appellant's suspension from practice under certain conditions, that was recommended H by the Committee, rather than imposing the penalty of removing his name from the register. The recommendation is a decision and the Board exercised an appellate function. Secondly, the Board, when amending the sanction, recommended by the Committee, failed to consider pertinent matters that were advanced in mitigation before the I Committee. Thirdly, the Board erred in substituting a penalty other than that recommended by the Committee. In effect, this appeal Court is invited to set aside the penalty imposed by the Board and substitute it with that recommended by the Committee. J

Patel J

B Disciplinary inquiry A

[3] On 16 November 2000 the Board initiated an inquiry into the appellant's conduct in terms of s 41 of the HPA read with Regulations Relating to the Conduct of Inquiries R 2303 of 28 September 1990 (the regulations). These regulations were repealed by reg 12(1) of Regulations 756 of 24 August 2001. However, by virtue of reg 12(2) the inquiry was conducted and finalised under the B procedures prescribed by those regulations as if such regulations had not been repealed.

[4] The appellant appeared before the Committee on four counts of unprofessional conduct. He was convicted on the first count only. This count related to certain events which occurred on 25 September 1996 in respect of Mrs McIntyre. The charge against the C appellant was that he:

'1.

Encouraged the patient to fantasise about sex and/or masturbate; and/or

2.

Had sexual and/or intimate and/or physical contact with your patient in that you

2.1

caressed the patient behind her ears; and/or

2.2

caressed the patient's breasts; and/or D

2.3

placed your fingers in the patient's vagina; and/or

2.4

rubbed the patient's vagina; and/or

2.5

licked the patient's clitoris with your tongue; and/or

2.6

licked the patient's vagina with your tongue; and/or

2.7

exposed your private parts before the patient; and/or E

2.8

placed your patient's hand on your private parts; and/or

2.9

ejaculated in the presence of your patient; and/or

3.

Abused the position of trust as physician vis-à-vis the patient by persuading, requesting or convincing your patient to have sexual and/or intimate and/or physical contact with you; and/or

4.

Abused your position of trust as physician vis-à-vis the patient by requesting the patient to have a F sexual and/or physical relationship with you; and/or

5.

Informing the patient that you are physically attracted to her.'

(Translation.)

[5] The appellant pleaded not guilty to the charge.

[6] It was common cause that Mrs McIntyre was suffering from anxiety, panic disorder and depression. She was referred by the G Depression and Anxiety Support Group to the appellant. He was one of a number of medical practitioners to whom patients were referred by the support group.

[7] According to the appellant, Mrs McIntyre was an emotionally H compromised person. At the first consultation he diagnosed that she suffered from a severe panic disorder and prescribed an antidepressant, Aurorix and Zanor, an anxiolytic.

[8] Because of the appellant's plea of not guilty, the pro forma complainant was put to prove the allegations of I unprofessional conduct on the appellant's part. For this purpose, Mrs McIntyre's evidence of intimate matters had to be lead in graphic detail. She testified that she was referred to the appellant because she suffered from panic and anxiety disorder. At the first consultation, on 22 March 1996, the appellant asked about her marriage and her sexual relationship with her husband. J

Patel J

She informed him that from the inception of her marriage she and her A husband had not had a sexual relationship. What she meant was that they had sex infrequently, it seemed as if they had no sex at all. The appellant diagnosed that she suffered from severe panic attacks.

[9] Between the first consultation and 25 September 1996 she visited the appellant approximately on ten occasions. Each time he raised the aspect of her sex life. This embarrassed her because it was B not important to her. She did not wish to discuss her sex life with the appellant. Her priority was to get well. He advised her that her panic attacks were caused by her 'sexuality being locked up' and encouraged her to fantasise about sex. He also encouraged her to masturbate and diagrammatically showed her how to do so. At each consultation he C inquired from her whether she had masturbated.

[10] On 25 September 1996 she consulted the appellant. They chatted in general and he wrote out a prescription for her medication. This usually signified the conclusion of the consultation. However, as she bent down to pick up her handbag, to leave the appellant told her: D 'Get undressed.' She told him that she did not wish to get undressed. He became angry, shook his finger at her and said: 'Do you want to get better or don't you?' She responded by saying: 'Of course, I want to get better.' He then ordered her to undress. She was embarrassed to do so in his presence since she had never been examined by him. She refused to undress in front of him. He indicated that he would leave E the room for five minutes. Once again still angry and shaking his finger at her, he said: 'And you can decide whether you want to get better or not. It is up to you.' He left the room. She undressed and put on a gown and buttoned it. F

[11] Thereafter, the appellant returned. He was smiling and told her to get on the bed. She sat on the edge of the bed but he instructed her to lie down which she did. After that he closed the curtain. He approached her and unbuttoned the gown. He took her hair, put it behind her head, stroked her ears and neck and began to caress her breasts. He placed his hand between her legs and began to caress her pubic area. He G also licked her private parts. He unzipped his trousers, pulled out his erect penis. He took her hand and put it on the end of his penis. He ejaculated on her hand and wiped the semen off himself with cottonwool. During this entire episode she did not respond at all. After she got dressed, the appellant suggested that they have an affair. She left and she did not want to see him again since he had abused the trust she had H placed in him.

[12] The following week she visited his consulting rooms to hand him a letter she had written. He admitted to her that what occurred was neither morally nor ethically right. He asked her not to reveal to anyone what had happened. She said that she would not. Subsequently, she visited the appellant's consulting rooms to obtain a prescription I for her medication. Thereafter, she never consulted him again because the entire episode was too traumatic to her. J

Patel J

C Committee's recommendation A

[13] The Committee recommended to the Board that the appellant be found guilty in respect of paras 2, 3 and 4 of the charge on count 1. It also recommended a penalty of suspension from practice for a period of two years. The execution of the sanction be suspended for a period of five years on condition that he is not again found guilty B of unprofessional conduct of a disgraceful nature committed during the period of suspension and also on the condition that he be prohibited from doing clinical work in private practice during the period of suspension and that he submits to suitable psychotherapy by a clinical psychologist and treatment by a psychiatrist. For this purpose three monthly reports had to be submitted to the Board. C

D Consideration by the Board

[14] Following upon the Committee's recommendation, the matter came before the seventh meeting of the Board on 10 and 11 September 2001. It was resolved (as appears from the minutes), that: D

'(a)

The recommendations by the Professional Conduct Committee as to the findings be adopted and Dr F de Beer be found:

(i)

guilty of...