Dr Yash Naidoo, Dentolegal Consultant, Dr Graham Howarth, Medical South Africa Lead, and Dr Alasdair McKelvie, Dental South Africa Lead from Medical Protection Society (MPS) detail the practical steps each practitioner should take if an HPCSA investigator shows up at their practice.

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For anyone who owns or works in private practice, it is crucial to understand your legal rights and responsibilities in the event of an unannounced visit from a Health Professions Council of South Africa (HPCSA) investigator.

A legal journal article authored by the previous Ombudsman of the HPCSA and others, highlighted the lack of understanding within the HPCSA, regarding the provisions of the Health Professions Act (the Act) relating to investigations. It concludes that anyone involved in investigations should familiarise themselves with the relevant provisions and its prescripts, as a failure to do so may render the process irregular or unlawful.¹

At the outset, it is important to emphasise that one should always co-operate with lawful requests from the HPCSA. This article is not meant to suggest otherwise.

However, there appears to be a growing number of situations where practitioners have been caught unawares. It is vital to understand the boundaries of the HPCSA’s authority so you can respond appropriately without jeopardising patient confidentiality or putting yourself at risk.

The common practice

Recently, many practitioners have reported an unannounced “inspection” by the HPCSA at their practice. For many, these unannounced visits can feel intimidating and raise concerns, particularly about the release of sensitive and confidential information without patient consent. These inspections seem to follow a similar pattern.

An HPCSA official or appointee arrives at your practice without prior notice. They introduce themselves to the receptionist and ask to speak with the owner or another available practitioner. At this point, the official may request access to patient files, diaries, or other documents.

If the clinical staff are not immediately available, the official may speak with administration staff or even patients who happen to be at the practice. In some cases, the official takes photographs of the premises or notes down observations of what they find, without providing a clear explanation for their actions.

After the visit, the official drafts a report, which may include a range of details such as how the investigation was conducted, what was found, and recommendations for further action to be taken. Often, this report leads to a formal letter sent to the practitioner by the HPCSA’s complaints handling and investigations division, asking for a written explanation to address certain concerns raised during the visit.

The lawful practice

It is essential to remember that the HPCSA, like other public bodies, is governed by specific laws.

The Health Professions Act gives the HPCSA powers to investigate certain matters, but it must act strictly within the bounds of the law.

The Act allows for investigations to be conducted when there is a complaint or allegation of unprofessional conduct, or if a registered practitioner is believed to have contravened the provisions of the Act. However, the Act does not grant the HPCSA the power to carry out random, unannounced inspections, as is often believed. In fact, the word “inspection” does not appear in the Act at all.

This means that any so-called “inspection” that occurs outside the parameters of the law is unlawful and can be challenged. It is vital for practitioners to know this, as complying with unlawful requests could result in unnecessary harm to the practitioner’s practice or patients' privacy.

The contentious provision

While the Act does allow investigators to search for and seize documents or items relevant to an investigation, they generally require a search warrant to do so. This ensures that the rights of both the practitioner and the patient are protected, particularly in sensitive cases involving medical records or other private information.

There are a few exceptions where a warrant may not be required – such as in urgent cases – but the investigator must be able to justify why they could not obtain a warrant. If they cannot, the investigation can be challenged as unlawful, and any findings from such an investigation may be rendered inadmissible in subsequent proceedings.

In short, the HPCSA does have the authority to conduct investigations, but those investigations must be lawful and adhere to specific processes.

Practical implications of investigations or “inspections”

Over time, we have seen how seemingly unrelated issues can arise during an investigation, leading to further complications for the practitioner. One case involved a practice where the term “locum” was incorrectly used by an associate when speaking to an investigator. While the investigation was initially focused on verifying sick notes, the misuse of the term ended up implicating the associate and the practice owner, leading to additional complaints.

Another recent trend involves dental practices being subjected to unannounced visits. In several cases, the investigators focused on the registration status of oral hygienists and dental assistants working at the practice. In these cases, investigators found – much to the surprise of the practitioners – that some employees’ registrations had been suspended due to unpaid fees. This led to complaints against both the practitioners for practising while unregistered, and the practice owners for employing unregistered practitioners.

In yet another case, an anonymous complainant who was dissatisfied with the cost of certain dental procedures, added allegations that the practice was unsafe and unhygienic. This led to an inspection during which the receptionist, without the dentist’s permission, allowed photographs of the practice to be taken. This escalated the situation further, resulting in a formal complaint.

These examples highlight the importance of understanding your rights and obligations during an investigation. It is crucial to ensure that any investigation is conducted lawfully, and that patient privacy is always respected.

What you should do if an investigator visits your practice

If you are a member of MPS, we strongly recommend that you contact us immediately if you are approached by an HPCSA investigator. You can politely inform the investigator that, while you are willing to cooperate, you need to seek advice before proceeding.

Here are some practical steps to follow if an HPCSA investigator arrives at your practice:

1. Always ask for identification and a search warrant
   Request to see the investigator’s official certificate of appointment from the HPCSA, as well as a search warrant. If they do not have a warrant, ask for a detailed explanation of why they believe the investigation is urgent and why a warrant was not obtained. While you can give consent for the investigation to proceed without a warrant, it is usually not in your best interest to do so.
2. Understand your rights when refusing access
   A word of caution. If you refuse to grant access, you may be charged with unprofessional conduct. However, this can be defended, particularly if the investigation was not conducted lawfully. There is a precedent of practitioners being vindicated after refusing to consent to an unlawful search. This is one of the reasons why we advise that you contact MPS immediately if you are approached by an investigator.
3. Be cautious with patient information
   If the investigator requests access to patient files, be careful. Always ask for justification if the patient has not provided consent for their information to be shared. Even if the investigator has patient consent, you still have the right to ensure that the investigation follows the correct legal process. If in doubt, provide only the minimum information requested while withholding further access until a warrant is provided.
4. Stay on top of registration details
   Regularly check your HPCSA registration status as well as that of any employees. This is especially important after each renewal period. Consider adding a clause in your employment contracts requiring registered staff (such as assistants, hygienists, or associates) to maintain their registration as a condition of employment.

Conclusion

It is essential for practitioners to be aware of their rights and responsibilities during HPCSA investigations. While it is important to co-operate with lawful investigations, all practitioners should ensure that any actions taken by investigators are within the bounds of the law. Protecting the rights of the practice as well as all practitioners and patients involved should always be a top priority.

This article was originally published in Juta Medical Brief and is republished with permission. 

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1. Kwinda, MA, Labuschaigne, M, & Slabbert, M. (2024). Powers of the Registrar of the Health Professions Council to institute investigations under the Health Professions Act 56 of 1974. De Jure Law Journal, 57(1), 17-23. https://dx.doi.org/10.17159/2225-7160/2023/v57a2