JAUNDICED EYE

Hit the bureaucrats where it hurts 

It was 1997 and Nelson Mandela’s fresh-faced government was still imbued with an admirable commitment to serving the previously downtrodden masses. Hence, Batho Pele, a seSotho/seTswana phrase meaning People First.

It’s an eight-point manifesto, based on the not unreasonable belief that public servants are exactly what the name says. They are employed by the public to deliver, courteously and efficiently, the goods and services that their customers pay for in taxes. All of officialdom’s processes should be transparent and when government workers fail to meet agreed standards, their failures and mistakes will be speedily remedied.

Laminated posters of the Batho Pele principles hang in every government office’s public waiting area — our very own Citizen’s Charter. More elaborate gilt-framed versions, rendered in colour and curlicues, hang in every important official’s office — a secular Nicene Creed for deployed cadres.

But Batho Pele, like many of the African National Congress’ high-toned intentions, has come to naught. Government workers are haughty, lazy and incompetent. They are overpaid and underperforming. They are also immune to sanction — nobody gets suspended, nobody gets fired. 

At the level of getting a motor vehicle licence, Batho Pele is just a bad joke. It’s frustrating but doesn’t really matter.

But if you can’t get your professional licence it’s not funny. Not being able to work is a life-changing disaster. 

The Health Professions Council (HPCSA), the statutory body that regulates and controls every aspect of the medical and allied professions, is a case in point. It’s a Batho Pele nightmare. 

Five years ago, a ministerial task team found the Council to be riddled with corruption, its executives incompetent, and its administration a shambles. They concluded that the HPCSA was structurally unsuited to carrying out its core functions — which include the examination and recognition of foreign qualifications and the registration of medical practitioners — and sacked its top executives. 

A new team was appointed and Dr Tebogo Letlape was the new broom CEO. It appears, however, that nothing much was achieved. 

Last week, in the Pretoria High Court, a high-flying Swiss orthopaedic surgeon shone an unflattering light on the HPCSA operations. It was the culmination of a long battle with the bureaucrats.

Dr Markus Michel emigrated to South Africa in 2013 on an “exceptional skills” visa, bought a home in Paarl, got an offer from Mediclinic to set up a special orthopaedic unit, and offered his services pro bono to Tygerberg Hospital. But for more than seven years Michel couldn’t get the HPCSA to accept his foreign qualifications, despite them being certified by the government’s own SA Qualifications Authority.

Eventually, Michel took to the law, arguing that the HPCSA’s failure to decide on his application was a violation of his constitutional rights to freedom of trade and occupation, to equality, and the protection of the rule of law. In his application, Michel said he had resorted to the courts because of the “intransigence, incompetence and indifference” of the HPCSA, its Medical and Dental Professions Board, the Council's CEO, Dr Tebogo Letlape — yes, dear reader, the selfsame “new broom” of 2015 — and the Board's chief administrator, Nkululeko Ntloko.

Not only had he met “all the applicable legislative requirements for registration”, said Michel, but the HPCSA “never seriously disputed the veracity or quality of my qualifications, training or experience”. In other words, they were just being either incompetent or spiteful.

Michel’s struggle to negotiate the HPCSA’s byzantine processes is detailed in 30-pages of the affidavit, supported by almost 100 annexures of correspondence with the HPCSA’s officials. Following his initial application, Michel was made to submit his application anew a further three times.

“I diligently responded in detail and with supporting documents to innumerable information and document requests. I, and many other people on my behalf, including eminent South African specialist medical professionals and academics, have engaged unendingly with officials of the HPCSA and the Board. We have simply been shunted from pillar to post and have been faced with the worst bureaucratic stonewalling and obstruction.”

Michel said in the affidavit that as a qualified doctor and surgeon he had more than 30 years of experience and had met “all the applicable legislative requirements for registration”. It is a modest assertion.

Michel qualified in Switzerland. He was a research fellow at the Massachusetts Institute of Technology and Harvard University and has authored more than 20 journal articles, as well as presented at international conferences. For the past 15 years has consulted on tissue-sparing hip surgery and conducted teaching surgeries all around the world on a procedure that he developed. He is a member of the orthopaedic surgeon associations of Switzerland, Germany, the United States and South Africa. 

Michel started several orthopaedic and orthopaedic sports clinics in Switzerland. He headed the orthopaedic department of the Bern hospital network and he is founder of the Swiss Joint Foundation.

Why, with credentials as mediocre as these, one can, of course, understand the HPCSA’s sniffy disdain! In the end, they claimed that the ultimate stumbling block was that they couldn’t find in his Swiss training an equivalent to the one-year postgraduate internship that South African doctors undertake. That’s because, explained his attorneys, medical training In Switzerland is structured slightly differently. 

Michel’s unhappy experience is by no means unique. There are dozens of foreign-qualified doctors who, at this very moment, are engaged in battle with the HPCSA, trying to get their qualifications accepted.

Very often they fail. Two years ago, Dr Francoise Louis, who had been part of the team who developed South Africa’s national HIV treatment protocol, abandoned a similar seven-year registration struggle with the HPCSA and returned to France.

Ugandan- and British-trained Dr Michael Rebeiro had a protracted struggle with the HPCSA during which he worked, without pay, for eight years in the public sector. He was one of fewer than 20 plastic surgeons in South Africa qualified to perform reconstructive microsurgery on hands and has now set up practice in Kenya.

Interestingly, one of the problems identified lurking in the bowels of the HPCSA in 2015 was its excessively legalistic approach. Apparently, at that time, the HPCSA employed more lawyers than health professionals and in the section that dealt with professional conduct matters, there was not a single medical practitioner or person with a medical background.  

This, it was argued, had resulted in an excessively adversarial approach by the HPCSA. And this, in turn, might explain why the HPCSA has had such a spectacularly disastrous record with all its high-profile inquiries that were instituted for political reasons rather than medical ones.

In October the botched prosecution of Dr Jaques de Vos, which his lawyer had described as a “personal vendetta” because of his outspoken anti-abortion views, ended with the HPCSA abruptly dropping all charges. De Vos, in the meanwhile, had been in professional limbo for three years, prevented from completing his training.

The three-year prosecution of Professor Tim Noakes, over his championing of the Banting diet in a tweet, similarly collapsed in tatters. In one embarrassing incident, the HPCSA issued contradictory statements hours apart, the first declaring Noakes guilty of unprofessional conduct, the second declaring him not guilty.

A five-year prosecution of Dr Wouter Basson over his role in the apartheid government’s secret medical programmes was similarly ham-fisted. Eventually, the Constitutional Court in February this year put the HPCSA out if its self-flagellating misery when it refused to hear its appeal against a High Court judgment that had described the prosecution of Basson as a “comedy of errors”.

So, is it that the HPCSA and its most senior officials are simply stupid and incompetent? Or is there something more sinister?

An advocate whom I spoke to, who has considerable experience of such cases, opts for both. “It’s not only about incompetence or bureaucratic rigidity,” she says.

“One gets a sense that behind it lies a real antipathy at the HPCSA towards foreigners. There’s a xenophobia about them taking South African jobs, which is ridiculous given the levels of skills we are talking about and the shortage of these skills in South Africa.”

Michel agrees. He told me that over the past seven years he has seen “very strange things happening” with regards to HPCSA registrations.

“I’ve seen excellently educated people – like a South African professor for orthopaedic surgery who lived and worked in the UK for 20 years — struggling to get registered again after coming home. But I have also seen completely uneducated surgeons who got full registration from the HCPSA in less than three months. It is very worrisome to see that the registration doesn’t seem to go with the qualifications.”

Judge David Makhoba had no hesitation in granting Michel’s application — the HPCSA failed to defend the action and filed no rebuttal — and ordered it to decide on Michel's registration within 90 days. He also gave a punitive costs order against the HSPCA, its Board, and Messrs Letlape and Ntloko.

Punitive costs, although calculated at the higher attorney-client scale, will only go part of the way to recompensing Michel for the R400,000 he has spent fighting the HPCSA so far. In any case, the battle may not be over. The HPCSA may, conceivably but riskily, decide within the stipulated 90 days to refuse Michel's registration.

The punitive costs order is significant. It's a seldom exercised indication of judicial displeasure at how the party it is granted against has conducted itself. It's a heartening shot across the bows of bureaucrats who until now have imagined themselves to be untouchable. 

Batho Pele clearly doesn’t work. Punitive costs orders and personal costs orders — making officials bear directly the consequences of their arrogant recalcitrance in their wallets — might.

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