The Health Professions Council of South Africa (HPCSA) has doubled down to protect Groote Schuur Hospital doctors accused of the unauthorised removal of a patient's life support that resulted in death (euthanasia) and hospital and Western Cape Health Department administrators who covered it up.
As I related in a previous post, on 31 May 2019 the HPCSA's Third Medical Committee of Preliminary Inquiry (committee) exonerated doctors Ahmed Al Sayari, Marcelle Crowther and Mikhail Botha and Trauma Centre head Prof. Andrew Nicol, CEO Bhavna Patel and WCHD head Dr Beth Engelbrecht. I requested the committee's rationale and doctors' responses but despite promising to do so, they only sent the responses excluding Nicol's second statement (2019) which they refuse to.
The committee and CEO/registrar Dr Raymond Billa, who nominally investigates the public's complaints and assured me they're an "advocate for the public", cleared the doctors based on hearsay testimony from an unidentified doctor (I gather Mohammed Mayet), suspected manufactured medical reports, lies and some truth mixed with fiction.
The shocking decision to protect the rogue doctors was replete with legal mistakes and was irrational. Almost from receipt of the complaints in late 2017 their process was biased in favour of the respondents and prejudicial against the complainant, us.
The HPCSA including its officers and committees are dysfunctional and compromised. Billa ignored my request for the preliminary committee members' names. Their website lists names which appear to be for radiography only.
However, on July 30, a month after their decision and I asked, HPCSA's case officer Khomotso Maimela sent me the names (after I had emailed the media officer Daphney Chuma) of the people who presided at the May 2019 meeting:
Prof Kapil Satyapal (chairperson)
Prof Binu Luke
Prof Elmin Steyn
Dr Devanand Nana
Dr Nicola Kalafatis
Prof Mthunzi Ngcelwane
My initial review of these names show that Elmin Steyn, gazetted as a member of the HPCSA's professonal board on 28 August 2015, and Andrew Nicol are co-editors of the Handbook of Trauma for Southern Africa, Oxford University Press, first published in 2004. It's described as "guidelines for the management of a broad spectrum of injuries and conditions following injury, including emergency care as well as aspects of critical care of the seriously injured patient". The third edition is 2017.
While past associations with the accused doesn't preclude disciplinary committee members from being objective, in this instance it raises the question of conflict of interest and bias. Steyn and Nicol are professional and business partners still accruing profits from an ongoing venture. It's untenable that a disciplinary committee member adjudicates a complaint against a person with whom she has a personal and/or business relationship. A guilty finding would would cause significant personal, professional, business and reputational risks which she would actively want to avoid.
This situation ought never to have arisen. That it has throws a dark cloud over the integrity and credibility of the HPCSA’s committees and entire organisation and perhaps answers why they were reluctant to give me members' names, proceedings and rationale for decision.
I shall dig further and wonder what other connections I shall find. Note there's no question Steyn is Nicol's book colleague - see here and here.
They still haven't given me the rationale, though. Section 33 of the Constitution “imposes a duty on the state to give effect to the right to lawful, reasonable and procedurally fair administrative action and to provide written reasons for any such action taken”. In this case the written reason is the rationale for the committee accepting the respondents' explanations which contain lies, fabrications and hearsay.
However, I suspect the rationale - a coherent explanation why the committee decided thus - is really absent/doesn't exist or is so tainted by deep bias and failure of due process in a similar way to the events that gave rise to the High Court case Basson v Hugo & others (968/16) [2017] that it's untenable for them to release it because it would prove the committee's decision was unlawful and irrational. What the Court said in Basson is applicable to our case too:
"A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before courts and other tribunals. Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes."
The HPCSA including its officers and committees are dysfunctional and compromised. Billa ignored my request for the preliminary committee members' names. Their website lists names which appear to be for radiography only.
However, on July 30, a month after their decision and I asked, HPCSA's case officer Khomotso Maimela sent me the names (after I had emailed the media officer Daphney Chuma) of the people who presided at the May 2019 meeting:
Prof Kapil Satyapal (chairperson)
Prof Binu Luke
Prof Elmin Steyn
Dr Devanand Nana
Dr Nicola Kalafatis
Prof Mthunzi Ngcelwane
Mr Vusumuzi Skosana (absent)
My initial review of these names show that Elmin Steyn, gazetted as a member of the HPCSA's professonal board on 28 August 2015, and Andrew Nicol are co-editors of the Handbook of Trauma for Southern Africa, Oxford University Press, first published in 2004. It's described as "guidelines for the management of a broad spectrum of injuries and conditions following injury, including emergency care as well as aspects of critical care of the seriously injured patient". The third edition is 2017.
While past associations with the accused doesn't preclude disciplinary committee members from being objective, in this instance it raises the question of conflict of interest and bias. Steyn and Nicol are professional and business partners still accruing profits from an ongoing venture. It's untenable that a disciplinary committee member adjudicates a complaint against a person with whom she has a personal and/or business relationship. A guilty finding would would cause significant personal, professional, business and reputational risks which she would actively want to avoid.
This situation ought never to have arisen. That it has throws a dark cloud over the integrity and credibility of the HPCSA’s committees and entire organisation and perhaps answers why they were reluctant to give me members' names, proceedings and rationale for decision.
I shall dig further and wonder what other connections I shall find. Note there's no question Steyn is Nicol's book colleague - see here and here.
However, I suspect the rationale - a coherent explanation why the committee decided thus - is really absent/doesn't exist or is so tainted by deep bias and failure of due process in a similar way to the events that gave rise to the High Court case Basson v Hugo & others (968/16) [2017] that it's untenable for them to release it because it would prove the committee's decision was unlawful and irrational. What the Court said in Basson is applicable to our case too:
"A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before courts and other tribunals. Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes."
Problems of propriety appear to be the HPCSA’s Achilles heel
and they have learned nothing from Basson.
In the recently decided Basson v Hugo and Others (29967/2015Â ) [2019] apartheid-era doctor Wouter Basson, who in 2013 the HPCSA had found guilty of unprofessional conduct, was successful in his application to have committee members Professors J Hugo and R Mhlanga recused on grounds they were among the complainants against him. The Court set aside Hugo's and Mhlanga's refusal to recuse themselves from the professional conduct inquiry proceedings.
The HPCSA is appealing on the specious grounds the judgement will inhibit practitioners from serving on inquiry committees. It's hard to see how they will succeed because Hugo and Mhlanga were both accusers and adjudicators, or as Judge Potterill noted, one cannot be a judge in one's own cause.
In our case there was an absence of fair and impartial adjudication. The entire matter reflects very badly on the reputation and integrity of HPCSA and Dr Billa personally who assured me they are "advocates for the public". And it confirms the department of health's 2015 investigation that council is dysfunctional, the Court's finding its committees are captured by personal and political agendas and the public's opinion HPCSA serves the interests of rogue practitioners.
The HPCSA is appealing on the specious grounds the judgement will inhibit practitioners from serving on inquiry committees. It's hard to see how they will succeed because Hugo and Mhlanga were both accusers and adjudicators, or as Judge Potterill noted, one cannot be a judge in one's own cause.
In our case there was an absence of fair and impartial adjudication. The entire matter reflects very badly on the reputation and integrity of HPCSA and Dr Billa personally who assured me they are "advocates for the public". And it confirms the department of health's 2015 investigation that council is dysfunctional, the Court's finding its committees are captured by personal and political agendas and the public's opinion HPCSA serves the interests of rogue practitioners.
The Office of Health Standards Compliance and Cape Town Inquest Magistrate's independent inquiries into the same matter are proceeding.
See Engelbrect's et al responses to the Preliminary Committee here, and my comment to that here.
Updated 30/07/2019 with committee members' names.
Postscript: Billa did not reply to my letter of July 30. I wrote him on August 15 that there might have been violations of the Prevention and Combating Corrupt Activities Act, 2004 and again asked for his explanation of the committee's conduct. I reminded him the Act obliges those in position of authority - him and committee chairperson - to report violations and suspected violations to the police. I copied Cape Town NPA and OHSC (added 15/08/2019).
The Special Investigations Unit (SIU) is investigating the HPCSA. Employees allegedly took bribes in exchange for medical registrations and board exam passes. In a statement to eNCA Billa said "the HPCSA is a credible organisation with stringent measures to make sure we're releasing capable and committed practitioners into the public domain". Also see here (added 16/08/2019).
Update (25/08/2019): The Special Investigations Unit and NPA, South African Police Service and other agencies formed the National Health Anti-Corruption Forum to curb fraud, waste and abuse in the healthcare sector (also see here). I prepared an affidavit and will submit a complaint to the NPA under the Prevention and Combating of Corrupt Activities Act.
Updated 30/07/2019 with committee members' names.
Postscript: Billa did not reply to my letter of July 30. I wrote him on August 15 that there might have been violations of the Prevention and Combating Corrupt Activities Act, 2004 and again asked for his explanation of the committee's conduct. I reminded him the Act obliges those in position of authority - him and committee chairperson - to report violations and suspected violations to the police. I copied Cape Town NPA and OHSC (added 15/08/2019).
***
Update (25/08/2019): The Special Investigations Unit and NPA, South African Police Service and other agencies formed the National Health Anti-Corruption Forum to curb fraud, waste and abuse in the healthcare sector (also see here). I prepared an affidavit and will submit a complaint to the NPA under the Prevention and Combating of Corrupt Activities Act.
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