The myth of the disciplined professional
ORDINARY old people do ordinary old jobs. Doctors, lawyers, nurses, accountants teachers and, God help us, journalists and estate agents, “follow professions”. The phrase hints at a religious calling.
These aren’t the famous wukkers of South African parlance. Elevated above the herd, the manner in which these people toil resonates in the language. Someone who is “professional” is competent, effective, respected and respectable. Since they are obviously superior to common nine-to-fivers, professionals are great believers in self-rule. They don’t take kindly to being policed by their social inferiors. Professionals have self-authored codes of conduct, charters of commitment, declarations of ethics and oaths of integrity.
Astonishingly, society largely buys this selfserving gumph. The professions are allowed to regulate themselves, with the law interfering only in exceptional circumstances.
Given collegial ties and a concomitant inclination towards compromise — the “there but for the grace of God goes I” phenomenon — it doesn’t work too well for society when peers police one another.
This week, the auditor-general reported that R25 billion of the provinces’ fiscus was lost, stolen or strayed last year. The public service employs 1,3 million people.
Also this week, the board of Healthcare Funders revealed that medical-aid schemes are annually defrauded of R22 billion by practitioners. There are about 27 500 doctors. You know, the ones who take the Hippocratic Oath upon graduation, swearing by Apollo to avoid “intentional injustice and all mischief”.
Of course, the Health Professions Council of SA promises a vigorous disciplinary response. No doubt much like 2012, when it found all of 19 doctors guilty of fraud, with the penalty being never more than a fine, or a wholly suspended suspension.
Only one, Dr S.J. van Zyl, faced criminal charges in addition to disciplinary charges. He committed 1 947 counts of fraud amounting to about R400 000. The court fined him R200 000 and a suspended jail sentence. The HPCSA gave him a wholly suspended five-year suspension. Try getting away with that if you are an ordinary wukker. Perhaps in SA it should be called the Hypocritic Oath?
To its credit, though, the HPCSA publishes its guilty verdicts online, wrist-taps though they might be, and names the offender. The legal profession, in comparison, is a much fiercer and more effective trade union.
Infused, no doubt, by the ancient legal precept that justice must be seen to be done, SA’s law societies refuse to name members found guilty of disciplinary offences, except for those struck from the role or suspended. Since suspensions and strikings are court proceedings, open to public scrutiny, the law societies have no option in this regard. The law societies, otherwise staunch defenders of transparency and the public right to know, argue that a hearing is of concern only to the complainant and member. Only two societies responded to requests for information. KZN initially said it couldn’t provide statistics without having an executive meeting. Eventually it revealed that in 2012 there were 11 inquiries, with four attorneys struck off the role. Another 29 were suspended for failing to lodge audit reports or fidelity guarantee certificates.
Free State was immediately forthcoming: 25 attorneys were fined for offences such as failing to appear in court, not executing mandates, or not answering correspondence.
Neither society would name offenders. So any member of the public with hopes of checking the competence of the “professional” they need to engage, can forget it. It’s a blind tasting.
The Legal Practice Bill, which the law profession is fighting on legitimate fears that it will erode their independence, provides for an ombud. The profession’s opposition to the controversial clauses would be more credible if it embraced not only the concept, but insisted that ombud hearings were in public and the judgments were published online.