Patients who lost money by investing in their doctor’s financial scheme will not get justice from the health professions council; at this stage at least, the case is beyond its jurisdiction
Suppose a doctor were to give financial advice to patients, suggesting that they invest in his company at a time when secretly he knew it was in a parlous state. Would this be an infringement of the discipline of 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 can be disciplined by the HPCSA. He was to face allegations of unprofessional conduct in that he “brought 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 whilst he knew … the company was in financial distress”.
Further, it is said that he transferred funds invested in his company into his private bank account and that he “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 in the high court, where the judge, Nomsa Khumalo, has now given her decision.
The council had argued that the court should not at this stage decide the dispute over the preliminary question. Instead the council should be allowed to finalise the rest of its inquiry and then, if necessary, the whole decision could be taken on review.
Khumalo found that Grieve’s challenge “strikes at the very authority of the (council) to conduct the enquiry”. It would thus cause serious prejudice and a miscarriage of justice if he could not resolve the preliminary question until the whole inquiry was finished. And 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 were complete, 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. These exceptional circumstances meant it would be appropriate for the court to consider the dispute over the council’s jurisdiction before the whole matter of the charges against him was finalized.
According to the rules of the council, a charge had to be “health profession related”, in other words 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 Grieve’s profession.
Any act for which Grieve could be charged 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.” But the allegations concerned conduct not specified under the relevant law and regulations as “reprehensible” because the complaint appears not to be related to the health profession. Rather it is about persuading patients to participate in something unconnected to their treatment.
Lack of jurisdiction was a defect “of the highest order”, said the court, and 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, however. 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.
- Financial Mail, 7 March 2019