The Health Professions Council of South Africa and Others v Grieve

Dr David Grieve, a general medical practitioner from Centurion, Gauteng, was charged with unprofessional conduct by the Health Professions Council of South Africa (HPCSA). The charges related to conduct during 2004-2009 whereby he allegedly: (a) persuaded patients and former patients to invest in a financially distressed company of which he was a director; (b) transferred funds invested in that company to his private bank account; and (c) caused financial prejudice to those who invested. On 4 August 2014, Dr Grieve received notice of a disciplinary inquiry scheduled for 24-26 November 2014. He raised a point in limine that the HPCSA lacked jurisdiction because the allegations did not relate to the 'health profession' and therefore did not constitute unprofessional conduct under the Health Professions Act 56 of 1974. The Professional Conduct Committee dismissed the point in limine. Dr Grieve's attempt to appeal internally was refused. He then launched a review application in the Gauteng High Court, which upheld his point in limine and set aside the Council's decision.

• Whether the Health Professions Council of South Africa had jurisdiction to institute disciplinary proceedings against a registered medical practitioner for conduct not directly related to the practice of medicine or rendering of health services
• Whether the alleged conduct, if proved, would constitute 'unprofessional conduct' as defined in the Health Professions Act 56 of 1974
• Whether the Council's disciplinary powers are limited to conduct specified in regulations or extend to other conduct reasonably considered unethical or unprofessional
• Whether the Council was required to await criminal prosecution before instituting disciplinary proceedings

1. The appeal succeeded with costs. 2. The order of the high court was set aside and replaced with: (1) The point in limine is dismissed with costs; (2) The matter is remitted to the Professional Conduct Committee.

The binding legal principles established are: (1) The Health Professions Council's disciplinary jurisdiction is not limited to conduct relating to the practice of medicine or rendering of health services, but extends to all conduct that is improper, disgraceful, dishonourable or unworthy by registered health practitioners. (2) The two jurisdictional bases for the Council's disciplinary authority are: (a) registration of the health professional with the Council, and (b) allegations which, if proved, would constitute improper, disgraceful, dishonourable or unworthy conduct. (3) Section 49 of the Health Professions Act expressly provides that the Council's powers to inquire into complaints are not limited to acts or omissions specified in regulations. (4) The Council, as custos morum of the health profession, has broad supervisory functions including maintaining professional and ethical standards and protecting the public. (5) Conduct may constitute unprofessional conduct even if it does not involve criminal conduct or result in criminal conviction. (6) The abuse of the doctor-patient relationship for financial gain, even if not directly related to medical treatment, falls within the Council's disciplinary jurisdiction.

The court made several non-binding observations: (1) If the allegations were proved, the misconduct in this case could be more serious than in Preddy (which involved kickbacks for patient referrals). (2) Criminal prosecution may result in acquittal for reasons other than innocence of the accused, and the Council remains obliged to discharge its duties as the moral compass of the health profession regardless of criminal outcomes. (3) Conduct may be unethical without being criminal. (4) While a doctor-patient relationship was a feature of the alleged conduct in this case, such a relationship is not a prerequisite for the Council's jurisdiction. (5) The court noted that Dr Grieve raised a new argument on appeal regarding lack of particularity in the charges, which had not been raised before the high court and which he had never sought to cure by requesting further particulars - this argument was therefore not entertained.

This case is significant in South African administrative and professional regulatory law as it clarifies and affirms the broad disciplinary jurisdiction of the Health Professions Council of South Africa. It establishes that the Council's jurisdiction extends beyond medical malpractice and the direct rendering of health services to encompass ethical conduct more broadly. The judgment reinforces the Council's role as custos morum (guardian of morals) of the health professions. It confirms that unprofessional conduct can occur within the doctor-patient relationship even when not directly related to medical treatment. The case demonstrates that professional regulatory bodies have wide powers to maintain ethical standards and that their disciplinary jurisdiction is not confined to conduct specifically listed in regulations. This has important implications for the interpretation of professional regulatory statutes and the scope of disciplinary powers of statutory professional bodies in South Africa.