Most people are not aware that according to the Health Professions Council of South Africa’s rules, private hospitals cannot employ doctors.

While no single provision prevents a private hospital from employing a healthcare practitioner, various health legislation and guidelines read together do.

Under the National Health Act, 2003, a private health establishment is a health establishment that is not owned or controlled by an organ of state. This therefore include private hospitals.

Section 17 of the Health Professions Act, 1974 requires healthcare practitioners to register with the relevant professional board in order to practise. When healthcare practitioners are registered with the HPCSA, they are obliged to follow the HPSCA’s rules or risk disciplinary action and the possibility of being removed from the register.

In 2007, the HPCSA published its Ethical and Professional Rules, which bind all registered healthcare professionals. Any deviation from these Rules may result in disciplinary action by the HPCSA.

In terms of Rule 8, a healthcare practitioner may conduct their practice either in partnership or association with another practitioner registered under the Health Professions Act, either in their own right or as a juristic person owned by the healthcare practitioner/s within the scope of the profession in respect of which they are registered under the Health Professions Act.

A healthcare practitioner may not practise in any form of practice that has inherent requirements or conditions that violate any of the HPCSA’s rules or annexures to any of those rules.

The HPCSA’s Policy on Business Practice is incorporated into its Ethical and Professional Rules. This document prevents anyone who is not registered in terms of the Health Professions Act from sharing in the profits or income of a healthcare practitioner’s practice. It states clearly that “direct or indirect corporate ownership of a professional practice by a person other than a registered practitioner in terms of the Act is not permissible.”

A healthcare practitioner may not transfer any funds earned from patients to a private hospital, and a professional practice may not be directly or indirectly owned by any person other than a registered healthcare practitioner.

The Policy on Business Practice also indicates who may employ a healthcare practitioner and does not include a private health establishment on that list. The list includes only the public service, universities and other training institutions limited to training and research, mining companies and non-profit and non-governmental organisations, and other people registered under the Health Professions Act.

Other institutions can apply to the HPCSA to employ a healthcare practitioner. However, the Policy on Business Practice makes it clear that “private hospitals should not be allowed to employ because of profit motive.”

A healthcare practitioner is accordingly prohibited from being employed by a private hospital in terms of the HPCSA’s rules.

Nurses are not registered under the Health Professions Act, and they are therefore not required to comply with the HPCSA’s rules. The prohibition accordingly does not apply to them.

Healthcare practitioners are generally contracted to provide services to a private hospital’s patients, and it follows that private hospitals cannot usually be held vicariously liable for a healthcare practitioner’s negligence, which usually flows from an employer/employee relationship. Private hospitals are however vicariously liable for any harm caused by conduct of the nursing staff employed by the hospital and are liable for their own negligence relating to an actionable event.