In the judgment of Aslam v President: Health Professions Council and Others (3 April 2023), the court decided to permanently set aside disciplinary proceedings and to prevent The Medical and Dental Professions Board of the Health Professions Council of South Africa (HPCSA) from taking any further disciplinary measures relating to a complaint of unprofessional conduct made against the medical practitioner in 2008.
The complainant patient alleged that, on 24 August 2007, the medical practitioner, failed to diagnose a severe injury to her thoracolumbar spine by failing to take a proper history and failing to examine her clinically and radiologically. The medical practitioner denied the allegations of unprofessional conduct and maintained that he always had the intention of defending the charge.
More than two years after the inception of the complaint, the HPCSA in its role as the regulatory body for medical practitioners decided to hold disciplinary proceedings against the medical practitioner, a decision that remained pending for approximately 10 years. The medical practitioner complained about the prejudice caused by the HPSCA delays and requested that the inquiry be stayed on various occasions, but to no avail, which prompted his application for judicial review.
In arriving at its decision, the court considered the following factors:
- The dilatory conduct by the regulatory body in dealing with the complaint;
- Pertinent evidence being lost due to the delays, which included the passing away of a key witness and loss of crucial medical records;
- The adverse prejudicial impact that the pending disciplinary proceedings had on the medical practitioner’s mental and emotional well-being; and
- The overall lack of accountability by a regulatory body that should instil confidence in the medical profession.
One of the issues dealt with by the court was whether there should have been a referral of the inquiry back to the HPCSA’s preliminary committee, who made the decision to refer to the complaint to a disciplinary inquiry, and if approaching the court was the correct remedy. The court decided that the preliminary committee has no self-review powers once it arrived at its initial decision to conduct an inquiry and therefore agreed with the medical practitioner’s approach to seek relief from the Court after concluding that the application fell within the ambit of a judicial review.
The judgment emphasises the procedural right to fairness and a fair hearing, and places an onus on a regulatory body to ensure they conduct their functions prudently, fairly and with due diligence.