A BITTER PILL
Patients who lost money by investing in their doctor’s scheme will not get justice from the health professions council; the case is beyond its jurisdiction
Suppose a doctor were to give financial advice to patients, suggesting that they invest in his company when he secretly knows it is in a parlous state. Would this be an infringement of the discipline, according to the Health Professions Council of SA (HPCSA)? A recent case suggests not.
Dr David Grieve, whose “investment advice” to many patients caused them significant losses, has just won a case testing whether he could be disciplined by the HPCSA. He was to face a complaint of unprofessional conduct for bringing “the good name of his profession into disrepute” by persuading patients or former patients “to invest in a company in which he was a director while he knew … the company was in financial distress”.
Further, he is alleged to have transferred funds invested in his company into his private bank account, and “conducted himself in a manner that caused financial prejudice to his patients … in that they were made to deposit large sums of money into accounts of companies that were subsequently liquidated”.
When the disciplinary inquiry began, Grieve raised a preliminary issue, saying the charges were “entirely unrelated to the health profession” and that the committee hearing the matter would be acting beyond the powers given by law if it were to go ahead.
Though initially dismissed, his preliminary point eventually ended up in the high court, where judge Nomsa Khumalo has now given her decision.
The council had argued that the court should not at once decide the dispute over the preliminary question. Instead, it said the council should be allowed to finalise the rest of its inquiry and then, if necessary, the whole decision could be taken on review.
However, Khumalo found that Grieve’s challenge “strikes at the very authority of the [council] to conduct the inquiry”. It would thus cause serious prejudice and be a miscarriage of justice if he could not resolve the preliminary question until the inquiry was finished. And, she said, if the council heard the matter even though it did not have jurisdiction to do so, it would be an irregularity and the outcome a “nullity”.
While courts would normally intervene only after an inquiry is completed, in this case there were exceptional circumstances, particularly related to whether the council had jurisdiction to hear the charges against Grieve in the first place. Khumalo said these exceptional circumstances meant it was appropriate for the court to consider the dispute over the council’s jurisdiction before the whole matter of the charges against him was finalised.
According to the HPCSA’S rules, a charge has to be “health-profession related”.
In other words, it must be associated “with the rendering of medical or health services or treatment, or have something to do with [the] profession”, or be conduct considered improper or disgraceful in relation to the profession.
A defect ‘of the highest order’
Any act for which Grieve could be charged thus had to “pertain to his profession”. It “must significantly have something to do with him as a health professional or the performance of his duties as a health practitioner”.
However, Khumalo said the allegations concerned conduct that was not specified under the relevant law and regulations as “reprehensible”, because it appeared not to be related to the health profession. Rather, the case was about Grieve persuading patients to participate in something unconnected to their treatment.
The court found the council’s lack of jurisdiction to be a defect
“of the highest order”, and said Grieve’s preliminary challenge had to be upheld.
For the many people who claim Grieve ran a Ponzi scheme that has defrauded them of a great deal of money, this is not necessarily the end of the matter.
If the state successfully prosecutes him, the HPCSA may decide to resurrect its claim of unprofessional conduct based on proof of his conviction and sentence.
For the many people who claim Grieve ran a Ponzi scheme, this is not necessarily the end of the matter