De Beer v Health Professions Council of South Africa

• Jurisdiction: South Africa
• Citation: 2005 (1) SA 332 (T)

De Beer v Health Professions Council of South Africa
2005 (1) SA 332 (T)

2005 (1) SA p332

Citation	2005 (1) SA 332 (T)
Case No	A815/2002
Court	Transvaal Provincial Division
Judge	Patel J and Maluleke J
Heard	August 19, 2003; August 20, 2003
Judgment	March 24, 2004
Counsel	S Joubert for the appellant.; S K Hassim for the respondent.

Flynote : Sleutelwoorde F

Medicine — Disciplinary proceedings — Medical and Dental Professional Board of Health Professions Council — Decision G of to remove practitioner from register of medical practitioners after inquiry by disciplinary committee — Nature of decision and role of Board — Committee's recommendation, not finding — To hold otherwise to elevate recommendation to H finding, thus turning committee's inquiry into adjudicative process — This certainly not contemplated by Health Professions Act 56 of 1974 and regulations thereunder — Board ultimately determining appropriate sanction — Board therefore, when in considering the committee's recommendation, to make decision and not to assume appellate functions. I

Administrative law — Disciplinary proceedings — Two-stage approach — Committee recommending action and board subsequently adopting or rejecting recommendation — Role and powers of board — Medical and Dental Professional Board of the Health Professions Council of South Africa deciding after inquiry by disciplinary committee that applicant's name to be removed from register of medical practitioners — Charges relating to J

2005 (1) SA p333

unprofessional conduct of disgraceful nature in that he sexually abused a patient — Nature of decision of committee and role of A Board — Committee's recommendation not amounting to finding — To hold otherwise would be to elevate recommendation to finding and thereby render committee's inquiry an adjudicative process, something not contemplated by Health Professions Act 56 of 1974 and regulations thereunder — Whatever penalty committee recommended to Board, it was latter that ultimately B determined sanction to be imposed — Board therefore, when considering the committee's recommendation, to make decision and not to assume appellate functions.

Headnote : Kopnota

The appellant appealed in terms of s 20 of the Health Professions Act 56 of 1974 against a decision of the Medical and Dental C Professional Board of the Health Professions Council of South Africa, the Board of which had decided 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 and thereby D abused the position of trust between physician and patient. It was contended for the appellant that the Board should have confirmed the sanction of staying the appellant's suspension from practice under certain conditions that were recommended by the committee rather than imposing the penalty of removing his name from the register. It was contended that the recommendation of the committee was a decision and E that the Board exercised an appellate function. It was contended furthermore for the appellant that the Board had erred in substituting a penalty other than that recommended by the committee. It appeared that the committee had recommended to the board that the appellant be found guilty in respect of three paragraphs of the charge on count 1 and recommended a penalty of suspension from practice for a period of two years but that the execution of the sanction be suspended for a F period of five years on condition that he was not again found guilty 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 submit himself to suitable psychotherapy. Following upon the committee's recommendation, the matter came before G a meeting of the Board which adopted the finding of guilty but rejected the recommendation as to the penalty and it ordered that the appellant's name be removed from the register and that in order to be reinstated he would have to satisfy the health committee of the Board that he had received appropriate psychiatric treatment and that he was fit to take up his duties as a medical practitioner. The Board notified the appellant that it intended amending the recommended penalty to one H of removing his name from the register because the Board was of the view that the committee had over-emphasised the alleged remorse on the appellant's part; the steps initially taken by him to receive treatment; his attempts to avoid a recurrence of a similar incident and to regulate the environment in which he was practising at the time of the hearing to limited personal contact with the patient; as well as I the service he performed for the benefit of the community. In response to the Board's invitation the appellant submitted written representations and the Board then considered the matter with reference to the record, the committee's reasoning in support of the imposition of the recommended penalty and the appellant's written submissions. It was contended on behalf of the appellant that the Board J

2005 (1) SA p334

erred in notconfirming the penalty recommended by the committee and that A the Board should have assumed the position of an appeal court: Its function was to determine whether the finding and penalty recommended were in accordance with the law. It was contended for the respondent that it was never intended that the Board should perform an appellate function.

Held, that when the committee undertook an inquiry it engaged in ascertaining whether there was a breach of professional standards and it made its recommendation to the board. It then B determined an appropriate sanction since it was the custos morum of the medical profession and was statutorily entrusted with responsibility for deciding whether a particular practitioner's name should be erased from the register. (Paragraph [26] at 340H - I.)

Held, further, that it was therefore erroneous to regard the committee's recommendation as a finding: To hold otherwise would merely result in elevating the recommendation to a finding and thereby C rendering the committee's inquiry an adjudicative process which was certainly not contemplated by the statute and the regulations. Whatever penalty the committee recommended to the Board it was the latter that ultimately determined the sanction that it would impose on the offender. The Board therefore, when considering the committee's recommendation was required to make a decision and not to assume D appellate functions. (Paragraph [26] at 340I/J - 341B.)

Held, further, that since no misdirection had been shown indicating that the Board had not exercised its discretion properly or reasonably, there was no basis on which the decision of the Board should be interfered with. (Paragraphs [47] and [49] at 345D and I.) E

Cases Considered

Annotations

Catholic Bishops Publishing Co v State President and Another 1990 (1) SA 849 (A): dictum at 871D - E applied

Chairman, Board on Tariffs and Trade, and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA): applied F

Enderby Town Football Club Ltd v Football Association Ltd [1971] 1 Ch 591 ([1971] 1 All ER 215): referred to

Gee v General Medical Council [1987] 2 All ER 193 (HL): referred to

Gupta v General Medical Council [2002] 1 WLR 1691 (PC): referred to

Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another 1980 (3) SA 476 (T): G dictum at 486D - E applied

Helgesen v South African Medical and Dental Council 1962 (1) SA 800 (N): dictum at 816F - 817A applied

Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) ([1998] 3 All SA 577): referred to

Kibido v S [1998] 3 All SA 72 (SCA): referred to H

Marinovich v General Medical Council [2002] UKPC 36: referred to

Mbelu and Others v MEC for Health and Welfare, Eastern Cape, and Others 1997 (2) SA 823 (TkS): dictum at 833B - C applied

Nel v Suid-Afrikaanse Geneeskundige en Tandheelkundige Raad 1996 (4) SA 1120 (T) ([1997] 4 All SA 260): referred to

Pretorius v Suid-Afrikaanse Geneeskundige en Tandheelkundige Raad 1980 (2) SA 354 (T): I referred to

Rutenberg v Magistrate, Wynberg, and Another 1997 (4) SA 735 (C): dictum at 756H - 757A applied

S v Fazzie and Others 1964 (4) SA 673 (A): referred to

S v Pillay 1977 (4) SA 531 (A): referred to

Simaan v South African Pharmacy Board 1980 (1) SA 764 (T): referred to J

2005 (1) SA p335

Thuketana v Health Professions Council of South Africa 2003 (2) SA 628 (T) ([2002] 4 All SA 493): A referred to

Veriava and Others v President, SA Medical and Dental Council, and Others 1985 (2) SA 293 (T): dictum at 305B applied.

Unreported cases

De Bruin v Raad vir Gesondheidsberoepe (TPD case No 507/01, undated): approved B

Richter v Walton (New South Wales Court case, 15 June 1993): applied.

Statutes Considered

Statutes

The Health Professions Act 56 of 1974, s 20: see Juta's Statutes of South Africa 2003 vol 1 at 3-74. C

Case Information

Appeal against a decision of the respondent board in terms of s 20 of the Health Professions Act 56 of 1974. The facts appear from the reasons for judgment.

S Joubert for the appellant. D

S K Hassim for the respondent.

Cur adv vult.

Postea (March 24).

Judgment

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...