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Appeals Created by Section 20 of The Health Professions Act

9th October 2013

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In Emergency Medical Supplies and Training cc v Health Professions Council of South Africa and Professional Board for Emergency Care Practitioners, the Supreme Court of Appeal (SCA) considered whether an appeal under Section 20 of the Health Professions Act, No. 56 of 1974 (the Act) is broad or narrow.

In this matter, the SCA was asked to consider an appeal against a decision by the Professional Board for Emergency Care Practitioners (the Board), to withdraw the training accreditation of Emergency Medical Supplies and Training cc (EMS).

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The appeal followed an earlier appeal to the SCA by the Health Professions Council of South Africa (HPCSA) and the Board against a judgment and order of the Western Cape High Court. Motala J and Manca AJ had held that an appeal under Section 20 of the Act is a wide appeal that is not confined to the record which was served before the Board. The appeal was struck from the High Court's roll on the basis that the matter was not properly before the Court.

Leave to appeal that ruling to the SCA was granted on the question of whether the Section 20 appeal was a wide appeal or a narrow appeal.

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If the SCA concluded that Section 20 creates a wide appeal, then it would have to consider not only the merits of the case, but also the review grounds relied on by EMS. These grounds include bias and conflict of interest on the part of the Board when the decision to withdraw its accreditation was made, as well as other review ground raised by EMS.

On the other hand, if the SCA decided that Section 20 of the Act creates a narrow appeal (ie an appeal in the ordinary sense), the SCA's consideration would be confined to the merits of the appeal. The only determination would then be whether that decision was right or wrong and the evidence or information would be limited to that on which the Board's decision was based.

The facts

EMS had been granted accreditation to provide a limited number of training courses. It later emerged that EMS was also providing training in courses for which it had not received accreditation, contrary to Section 16(1) of the Act, which prohibited it from doing so.

EMS persisted in offering training in these courses despite being informed of this transgression by the Board. It also became evident that:

  • EMS' equipment was insufficient;
  • it failed to keep logbooks; and
  • the training it provided was generally poor, with EMS' students lacking a thorough understanding of theoretical material.

With a superficial grasp of the subjects, the students performed poorly in the November 2006 examination. It was for these reasons that the Board withdrew EMS' accreditation.

Section 20 of the Act affords a right of appeal as follows:

"(1) Any person who is aggrieved by any decision of the council, a professional board or a disciplinary appeal committee, may appeal to the appropriate High Court against such decision.

(2) Notice of Appeal must be given within one month from the date on which such decision was given."

In considering whether the appeal created by Section 20 is a wide appeal or a narrow appeal, the SCA briefly considered how the two courts a quo had approached the matter:

  • Motala J and Manca AJ adopted the view that the appeal under Section 20 was a wide appeal and that the Court was therefore not restricted to the information that was before the Board when it made its decision. Arriving at this conclusion, the learned judges concluded that they were entitled to have regard to the review grounds relied on by EMS.
  • Hlope JP and Zondi J concluded that the Section 20 appeal was indeed a wide appeal, but refused to hold that it was wide enough to include consideration by the Court of the review grounds contended for by EMS. The judges went on to state that the case was not a review but an appeal, and therefore the Court could only concern itself with the merits of the matter.

The judgment

The SCA concluded that the judges in the court below were no doubt correct in finding that there is a clear distinction between an appeal and a review, and therefore cannot be faulted in that regard. Notwithstanding that stance, however, they proceeded to deal in detail with the review grounds advanced by EMS in its appeal under Section 20 of the Act.

These grounds included EMS' contentions that:

  • an incorrect body took a decision to withdraw its accreditation;
  • the Board was biased in that it pre-judged the issue; and
  • there was a material conflict on the part of the members of the Board.

The SCA observed that, in view of the fact that the court a quo had found that the appeal under Section 20 was limited to the merits, the need to consider the review grounds raised by EMS had fallen away.

The SCA referred to the case of Health Professions Council of SA v De Bruyn [2004] 4 All SA 392 (SCA) in which it was held that an appeal to the High Court created by Section 20 of the Act was an appeal in the ordinary sense (ie "a rehearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether the decision was right or wrong"). The SCA concluded that this case was correctly decided and that the SCA is bound by the De Bruyn case.

Consequently, the SCA found that an appeal created by Section 20 of the Act is a narrow appeal (ie an appeal in the ordinary sense). It was therefore only necessary for the SCA to consider the grounds advanced by EMS on the merits.

Conclusion

Turning to the merits of the case, two main issues required consideration. The first concerned the correctness or otherwise of the decision of the Board to cancel EMS' accreditation. The second concerned the decision relating to the November 2006 examination.

Regarding the first issue, the essence of the complaint against EMS was that it offered training beyond the scope of its originally-approved accreditation. The matter became the subject of correspondence between the Board and EMS from 2005 to 2006, and culminated in the Board revoking EMS' accreditation in all the courses in which it conducted training.

The Board maintained throughout that EMS was conducting training beyond its accreditation and that, despite bringing this to the attention of EMS, the latter simply ignored this fact and proceeded with training beyond its accreditation.

The SCA found that:

  • EMS had applied for accreditation to offer training in a specified number of courses, and there is no reason to think that when accreditation was granted, it entitled EMS to offer more courses than those applied for; and
  • EMS' conduct in providing training in more courses than those applied for was contrary to the provisions of Section 16(1) of the Act.

Although there were other reasons why the Board decided to withdraw EMS' accreditation it was not necessary for the SCA to deal with those reasons, because EMS' conduct fell foul of the provisions of Section 16(1) of the Act.

The SCA proceeded to consider the November 2006 examination as one of the reasons which led to a decision to revoke EMS' accreditation. In this regard, the SCA held that the HPCSA is the "moral custodian" of the medical profession and has considerable advantages over a Court in evaluating the standards it seeks to maintain. Consequently, the SCA found that there can be no question that the Board's assessment of the November 2006 examination must carry the day.

The SCA dismissed EMS' appeal with costs.

By Renier Jacobs, senior associate, Webber Wentzel

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