This is update to my previous post (see here) regarding the Health Professions Council of South Africa's (HPCSA) dormant investigation into Groote Schuur Hospital's CEO Dr Bhavna Patel, Prof. Andrew Nicol and others.
I replied the following day copying Billa. I gave my assessment of the HPCSA's management of the case. Billa disagreed with my criticism but it's clear there were and still are significant lapses. He was only appointed in January 2019 so any criticism is to his predecessor and the organisation, particularly its complaints process. What follows is what I wrote.
Our complaint was in limbo for three months from 29 and 30 November 2018, when the committee met, to February when the HPCSA sent Nicol the request for a supplementary clarifying statement. Neither Mokwena nor anyone else one bothered to contact in Decemeber as she promised or subsequently to inform me of the further delay or who the replacement case officer was.
KM told me the committee wanted another "report" (she means "statement" because this is a legal process) from Nicol about his contact with my family after I wrote to him in July 2017 about my mother's care and death. She didn't know if he had responded yet – remember, she had not looked at the complete file – and would check. She confirmed, though, the other respondents did.
My problem is since she's unaware if Nicol replied, and it seems he hasn't, it proves the file was dormant. No-one had kept track of it since Mokwena left at the end of December (on January 15 I received an automated response from her mailbox that she had transferred to another department).
It's also apparent Nicol hadn't responded adequately the first time last year. They allowed the six Groote Schuur and Western Cape Health Department (WCHD) doctors and administrators including its head Beth Engelbrecht six to eight months when it's only three. They didn't inform me of the delay and then only when I asked. Now he gets another gets another extension.
His first response was inadequate so giving him more time than is reasonable is unacceptable and prejudicial to us, benefits him only and is in violation of administrative justice. Also, it's standard practice that the report-back period for second and subsequent responses are shorter than the original one.
The Health Professions Act’s Ethical Rules section 20(a) states “practitioners shall at all times cooperate and comply with a lawful instruction, directive or process of the council”, and sub-section (a), “respond to correspondence and instructions within the stipulated times”.
So unless they gave Nicol an open-ended window with with no thought or consideration to the complainants, his lack of response is in violation of the law and itself a disciplinary and ethical offense. I told KM should he not submit his response immediately, they charge him, and failure to do so would indicate prejudice to our case and bias for him and unwillingness to discipline a member, which is the public’s perception.
Anyway, the information he can provide is very limited. He and I, as the family’s representative, communicated only by email and there weren’t many of those. His to me were only three on July 17, August 1 and 2 wherein he said very little and nothing of substance regarding the case, viz, he was concerned to hear about our experience and would investigate; to arrange a time to meet at his office, or another hospital venue, and finally, that he would provide a verbal report only and his adamant refusal to provide a written one.
With my original complaint in November 2017 I included a transcript of my emails. I sent KM an updated one which she said it would be "helpful". Apparently, the committee did not have sight of the transscript and perhaps the numerous pages of supporting documents. I asked her how they could examine and make an informed decision without doing so.
At the time Nicol refused to give us a verbal report of my mother's care and circumstances of her death insisting - an ultimatum – it would be verbal only because he doesn't "do" written reports because it causes a lot of "to-ing and fro-ing" (sic). Of course that's ludicrous because Groote Schuur's and WCHD's complaints policy and process clearly states the relevant head of department or CEO – in this case Nicol or Patel – must provide a written report to the complainant within 25 days.
Minor edits 16/04/2019.
The HPCSA's CEO/registrar Dr Raymond Billa acknowledged receipt of my April 1 letter about the delays to investigating my mother's case. He said he would investigate and "report back within five working days" (by April 9). He noted my "disappointment and scepticism" but said the HPCSA is an "advocate of the public".
Later that afternoon (April 2) I received a phone call followed by an email from a HPCSA legal officer who said she had just been handed the case (I shall not name her at this time because she is new to the case and to do so would be unfair. I shall use her initials KM). She had not yet reviewed the file fully but gave me a progress report.
The case had not been abandoned as I thought. But it was dormant or forgotten for a few months. The previous officer Keabetswe Mokwena (not KM, their initials are coincidental) had moved to another department at the end of December or early January, which I was aware of, but the file was not handed to another officer. No one had responded to my emails in January and March asking for progress.
The case had not been abandoned as I thought. But it was dormant or forgotten for a few months. The previous officer Keabetswe Mokwena (not KM, their initials are coincidental) had moved to another department at the end of December or early January, which I was aware of, but the file was not handed to another officer. No one had responded to my emails in January and March asking for progress.
KM said the Preliminary Inquiry Committee had requested Nicol in February for an additional "report" (they met at the end of November 2018). She apologised for the delay. But Billa did not apologise as one would expect. He has not replied as promised at the time of writing. However, perhaps he considers KM's communication suffices.
I replied the following day copying Billa. I gave my assessment of the HPCSA's management of the case. Billa disagreed with my criticism but it's clear there were and still are significant lapses. He was only appointed in January 2019 so any criticism is to his predecessor and the organisation, particularly its complaints process. What follows is what I wrote.
Our complaint was in limbo for three months from 29 and 30 November 2018, when the committee met, to February when the HPCSA sent Nicol the request for a supplementary clarifying statement. Neither Mokwena nor anyone else one bothered to contact in Decemeber as she promised or subsequently to inform me of the further delay or who the replacement case officer was.
In well-run organisations there’s a hand-over when
people leave. There is no
organisation and particularly investigative ones, except the South African
Police Service and other government agencies which are notorious for
inefficiency and ineptitude, where active
cases are not assigned to another
officer. That it happened here confirms my accusations, but Billa believes it's unjustified.
KM told me the committee wanted another "report" (she means "statement" because this is a legal process) from Nicol about his contact with my family after I wrote to him in July 2017 about my mother's care and death. She didn't know if he had responded yet – remember, she had not looked at the complete file – and would check. She confirmed, though, the other respondents did.
My problem is since she's unaware if Nicol replied, and it seems he hasn't, it proves the file was dormant. No-one had kept track of it since Mokwena left at the end of December (on January 15 I received an automated response from her mailbox that she had transferred to another department).
It's also apparent Nicol hadn't responded adequately the first time last year. They allowed the six Groote Schuur and Western Cape Health Department (WCHD) doctors and administrators including its head Beth Engelbrecht six to eight months when it's only three. They didn't inform me of the delay and then only when I asked. Now he gets another gets another extension.
His first response was inadequate so giving him more time than is reasonable is unacceptable and prejudicial to us, benefits him only and is in violation of administrative justice. Also, it's standard practice that the report-back period for second and subsequent responses are shorter than the original one.
The Health Professions Act’s Ethical Rules section 20(a) states “practitioners shall at all times cooperate and comply with a lawful instruction, directive or process of the council”, and sub-section (a), “respond to correspondence and instructions within the stipulated times”.
So unless they gave Nicol an open-ended window with with no thought or consideration to the complainants, his lack of response is in violation of the law and itself a disciplinary and ethical offense. I told KM should he not submit his response immediately, they charge him, and failure to do so would indicate prejudice to our case and bias for him and unwillingness to discipline a member, which is the public’s perception.
Anyway, the information he can provide is very limited. He and I, as the family’s representative, communicated only by email and there weren’t many of those. His to me were only three on July 17, August 1 and 2 wherein he said very little and nothing of substance regarding the case, viz, he was concerned to hear about our experience and would investigate; to arrange a time to meet at his office, or another hospital venue, and finally, that he would provide a verbal report only and his adamant refusal to provide a written one.
With my original complaint in November 2017 I included a transcript of my emails. I sent KM an updated one which she said it would be "helpful". Apparently, the committee did not have sight of the transscript and perhaps the numerous pages of supporting documents. I asked her how they could examine and make an informed decision without doing so.
At the time Nicol refused to give us a verbal report of my mother's care and circumstances of her death insisting - an ultimatum – it would be verbal only because he doesn't "do" written reports because it causes a lot of "to-ing and fro-ing" (sic). Of course that's ludicrous because Groote Schuur's and WCHD's complaints policy and process clearly states the relevant head of department or CEO – in this case Nicol or Patel – must provide a written report to the complainant within 25 days.
At the time Patel condoned Nicol's refusal and she and Trauma Centre manager Dr Fahd Conrad tried to bully me into accepting a verbal report only. I agreed to it provided it was accompanied by a written one. They never replied to that offer.
Their position was illogical and the only conclusion I came to is it's easier to obfuscate and lie verbally. Once written down, it's irrevocable and any lies become fraud especially when done in an official capacity. This why I believe the director of public prosecution was silent about his reasons for not prosecuting.
Nicol's refusal to give us a report because he doesn't do them prove he's a liar. According to Researchgate he authored 161 papers. He's an academic and head of department at UCT and the hospital so must write numerous reports. Take staff and student evaluations. Is it his assertion he only evaluates them verbally with nothing entered into their record? This can't be the strange, casual way this supposedly intelligent man and his supposedly intelligent colleagues and employers conduct business.
So his response is dismissed with the contempt it deserves. Equally bad is he decides he's above protocol and law but doesn't get punished for it either by his employers and so far reluctantly by HPCSA which is indulging his nonsense, thereby being complicit in illegality.
My second concern raised in my letter to KM deals with the pathologist Dr Gavin Kirk who conducted the post-mortem on my mother. It repeats those I wrote to Mokwena about in October when I asked her to make sure the committee looked into it too.
In July and August 2017 when Kirk and I communicated about the post-mortem results, he also told me, to my questions, he was legally regulated by what information he could give anyone other than police and "investigating magistrate", i.e. prosecutor, and "the hospital and treating physicians do not receive the report from the Forensic Pathology Service" (his employer, a division of WCHD).
However, in one of our emails Nicol told me Kirk had given him a "report" on July 31. Note Kirk is a senior lecturer in forensic pathology at UCT Medical School where Nicol is a professor.
Kirk also told me he was unable to comment on the care my mother received in hospital. I had not asked him to except our concerns in the context of post-mortem evidence we wanted him to look for.
However, between December and January 2018 at the request of Cape Town's director of public prosecutions he gave them an opinion on medical negligence about hospital matters he was not privy to and had no direct knowledge of and beyond his expertise in forensic pathology. He is not an expert in trauma medicine and palliative care.
So he and Nicol knew about our concerns about medical malpractice. It's highly probable they discussed it on July 31. They’re UCT and health department colleagues and perhaps friends or acquaintances. Because of my complaints and pressure, the case was receiving a lot of attention so it's unlikely one or other, Nicol probably, didn't mention it.
I don't know what they discussed beyond the verbal report, which is why verbal communication in official and legal matters is not only suspect but improper because it leaves no trace. But it’s possible whatever was discussed and revealed later contributed to Nicol, Patel and Engelbrecht not conducting investigations and not provide a written report with the full facts of my mother's care, all in violation of the national and provincial health acts. Note outgoing Premier Helen Zille knew about from early August 2017 because I copied her to emails. But after I contacted her directly in November she promised then point blank refused to investigate.
Kirk is a connection to two key, related aspects of this case – the hospital and health department's irregular conduct and the DPP declining to prosecute. His role and connection to the accused deserves examination. I asked KM if the committee received my October submission and reiterated it be given to them.
So his response is dismissed with the contempt it deserves. Equally bad is he decides he's above protocol and law but doesn't get punished for it either by his employers and so far reluctantly by HPCSA which is indulging his nonsense, thereby being complicit in illegality.
My second concern raised in my letter to KM deals with the pathologist Dr Gavin Kirk who conducted the post-mortem on my mother. It repeats those I wrote to Mokwena about in October when I asked her to make sure the committee looked into it too.
In July and August 2017 when Kirk and I communicated about the post-mortem results, he also told me, to my questions, he was legally regulated by what information he could give anyone other than police and "investigating magistrate", i.e. prosecutor, and "the hospital and treating physicians do not receive the report from the Forensic Pathology Service" (his employer, a division of WCHD).
However, in one of our emails Nicol told me Kirk had given him a "report" on July 31. Note Kirk is a senior lecturer in forensic pathology at UCT Medical School where Nicol is a professor.
Kirk also told me he was unable to comment on the care my mother received in hospital. I had not asked him to except our concerns in the context of post-mortem evidence we wanted him to look for.
However, between December and January 2018 at the request of Cape Town's director of public prosecutions he gave them an opinion on medical negligence about hospital matters he was not privy to and had no direct knowledge of and beyond his expertise in forensic pathology. He is not an expert in trauma medicine and palliative care.
So he and Nicol knew about our concerns about medical malpractice. It's highly probable they discussed it on July 31. They’re UCT and health department colleagues and perhaps friends or acquaintances. Because of my complaints and pressure, the case was receiving a lot of attention so it's unlikely one or other, Nicol probably, didn't mention it.
I don't know what they discussed beyond the verbal report, which is why verbal communication in official and legal matters is not only suspect but improper because it leaves no trace. But it’s possible whatever was discussed and revealed later contributed to Nicol, Patel and Engelbrecht not conducting investigations and not provide a written report with the full facts of my mother's care, all in violation of the national and provincial health acts. Note outgoing Premier Helen Zille knew about from early August 2017 because I copied her to emails. But after I contacted her directly in November she promised then point blank refused to investigate.
Kirk is a connection to two key, related aspects of this case – the hospital and health department's irregular conduct and the DPP declining to prosecute. His role and connection to the accused deserves examination. I asked KM if the committee received my October submission and reiterated it be given to them.
During our phone call I asked her how often they meet. She said every second month, but not always; they didn't meet when they should have in September 2018 and March 2018. I told her: "so, they meet every second month except when they don’t, which is another reason our complaint, and I daresay others, are falling through the cracks".
The complaints department's and inquiry committee’s management of our matter is highly problematic:
·
Tardy and unsatisfactory to poor, unprofessional and
ineffective;
·
Inexplicable and unreasonable delays with no advice why;
·
Committee meetings not held when scheduled;
·
No hand-over to incoming officers and/or cases unattended,
dormant or abandoned;
·
The case not assigned to legal officers/investigators;
·
Respondents granted unreasonable and irregular extensions;
·
Process prejudicial to the complainant and biased in favour and
to benefit members;
·
Apparently complaint documents not read and/or handed to
committee;
·
And lack of communication especially with the complainant,
and an unfriendly opaque process.
The problems I raised in various communication to the HPCSA over the past year prove that at least in the way the HPCSA manages complaints is dysfunctional. Trade union Solidarity alleges it's "corrupt". But Billa insists it's an advocate for the public.
I wrote: "Under these
conditions and as long as they remain it cannot and will not be an “advocate
for the public”. Since 2013 if not before, various reports identified problems
including the 2015 ministerial task team
findings and recommendations, which it ignored."
This experience is arguably worse than my previous one 2002 to 2004 with the Christopher Hobbs (see here) matter when Groote Schuur's and WCHD's senior administrators helped him avoid justice while the HPCSA looked the other way, not wanting to become involved in a difficult, "political sensitive" case.
The same happened with doctors implicated in Life Esidimeni tragedy. But they spend resources on prosecuting Prof. Tim Noakes about a non-event, and former president Nelson Mandela's physician (see here and here).
The same happened with doctors implicated in Life Esidimeni tragedy. But they spend resources on prosecuting Prof. Tim Noakes about a non-event, and former president Nelson Mandela's physician (see here and here).
I remain sceptical of the HPCSA until I see proof they're taking our complaint seriously. However, I’m not hopeful.
Minor edits 16/04/2019.
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