The myth of the dis­ci­plined pro­fes­sional

Weekend Witness - - Opinion - With WIL­LIAM SAUN­DER­SON-MEYER

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.

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