Powers of the Registrar of the Health Professions Council to institute investigations under the Health Professions Act 56 of 1974

Abstract

The Health Professions Council of South Africa (the HPCSA) is a statutory body established in terms of section 2 of the Health Professions Act 56 of 1974 (hereafter "the Act"). One of the objects of the HPCSA is "to ensure the investigation of complaints concerning persons registered in terms of the Act and to ensure that appropriate disciplinary action is taken against such persons in accordance with the Act" (s 3(n)). The powers to institute an inquiry into a complaint, charge or allegation of unprofessional conduct against registered practitioners are vested with the professional boards established in terms of section 15 of the Act (s 41(1) of the Act). The procedure to be followed by the professional board in instituting an inquiry is prescribed in the Regulations Relating to the Conduct of Inquiries into Alleged Unprofessional Conduct Under the Health Professions Act, 1974 (GNR102 in GG31859 of 6 February 2009, hereafter "the Regulations"). While the powers to institute an inquiry of alleged unprofessional conduct is primarily vested with the professional board concerned, the Act (s 41A) and the Regulations (in reg 2) also confer certain powers to the Registrar to institute investigations. The questions thus arising are, when and under which conditions may the Registrar institute investigations under section 41A of the Act, and how should the Registrar conduct such investigations? The purpose of this note is to address these questions, as well as to comment on the lack of understanding by the HPCSA and the courts about who can exercise the provisions of section 41A.