Health Professions Council tried to stop exposure of Eastern Cape health crisis

On 11 September, the Treatment Action Campaign (TAC), the public interest law firm SECTION27, and several other organisations went public with details showing the dysfunctional state of the Eastern Cape health care system in a report titled Death and Dying in the Eastern Cape.

The story of a one-year-old boy, Ikho, highlighted the problems in the province. To the dismay of his mother and doctor, Dingeman Rijken, Ikho died in August in Holy Cross Hospital in Flagstaff because there were insufficient oxygen supplies. Health-e published the details of Ikho’s story.

If the Health Professions Council had had its way, the public would not have found out how Ikho died. A day before the story was to be made public, the council’s president, Professor Sam Mokgokong, sent a letter to Mark Heywood, the director of SECTION27, warning him not to release details of Ikho’s story. The letter from Mokgokong was titled: “Disclosure of confidential information in respect of deceased baby”.

It contained this threat, “if it turn[s] out that any registered practitioners are complicit in this envisaged publication, the HPCSA would not hesitate to initiate professional conduct proceedings against such health practitioners.”

Mokgokong justified the threat by saying that the National Health Act, “provides that all information concerning a [health system] user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential.” [emphasis in the original]

The SECTION27 and TAC report was released the next day with details of baby Ikho’s death redacted, but this was a decision taken before the HPCSA letter was received. Heywood had given an advance copy of the report to Minister of Health Dr Aaron Motsoaledi, who committed to investigating the circumstances that led to Ikho’s death.

Heywood explained to GroundUp, “The Minister’s argument was that this would lead to widespread breaches of patient confidentiality. We disagreed, but after extended internal discussion redacted that page as an expression of good faith in the Minister’s commitments to urgently address the system failures identified in the article.”

Nevertheless, Health-e had received an advance unredacted copy of the report before the Minister intervened. The news agency had also already interviewed Dr Rijken. It therefore published the story of Ikho’s death.

Heywood sent a response to Mokgokong on 19 September. He explained that Ikho’s mother had given permission to Dr Rijken to disclose Ikho’s medical information. Heywood cited a court case that explained it is “the user who can decide to keep [his or her medical information] confidential from others.” Since Ikho was an infant, that decision was his mother’s to make. Heywood also explained that it was in the public interest to release details of Ikho’s death because it showed the crisis in health in the Eastern Cape.

Heywood wrote, “The decision of the user (or … his guardian) to allow for the dissemination of information is therefore also an expression of dignity and autonomy. The HPCSA is not entitled to make such decisions for a user or guardian. It is indeed likewise critical to the maintenance of the integrity of the HPCSA that it promote and respect the autonomy of users who wish to speak out where they feel their rights have been violated. The HPCSA’s apparent attempt to silence this voice in this instance is therefore highly concerning.”

Until Friday, the HPCSA had not responded to Heywood’s letter. Dr Rijken confirmed that neither has it instituted action against him. “I had full consent of the mother to share all the patient details. Legally there was absolutely nothing against going public,” he said.

In response to questions GroundUp emailed on Friday morning, Professor Mokgokong wrote that the HPCSA does not need to seek permission from Ikho’s mother to execute its mandate. He said the HPCSA acted after the report was brought to its attention by a registered health worker “on condition of anonymity”. Mokgokong also said that a letter responding to Heywood’s September letter had been drafted. Heywood confirmed to GroundUp that he received it on Friday afternoon. The full response by Professor Mokgokong to GroundUp’s questions is included at the end of this article.

The Minister of Health’s media officer has not responded to GroundUp’s questions, including what the status of the investigation into Ikho’s death is, whether Minister Motsoaledi or any member of the Department of Health had shared the advance copy of Death and Dying in the Eastern Cape with the HPCSA, and whether the minister had asked Professor Mokgokong to act.

Since the publication of Death and Dying in the Eastern Cape and the Health-e article, the CEO and head of nursing at Holy Cross Hospital have been removed, but it is not clear if this is related to Ikho’s death.

The HPCSA’s mission is: “Quality healthcare standards for all.” It is a statutory body responsible for regulating and registering health workers as well as disciplining them. It is composed of a dozen professional boards, overseeing not only doctors, but dentists, dieticians, speech therapists and several other professions.

Andy Gray, who is at the University of Kwazulu-Natal’s School of Health Sciences, is one of the country’s foremost experts on the health system. He explained that the HPCSA was set up in 1997 to redress the medical dominance of the former Medical and Dental Council, and to create a less patronising structure to regulate different kinds of health professionals. “Although the idea of one umbrella body was good”, says Gray, “it appears not to be working.”

Last week, GroundUp reported that the HPCSA is unresponsive, slow and unconcerned. It repeatedly fails to respond to telephone messages and emails. It takes a very long time to register health workers, especially foreigners wanting to work in South Africa. Since the story was published, we have received communications from several doctors with complaints about the dysfunctionality of the HPCSA.

Yet Mokgokong appears to have acted with remarkable speed to attempt to stop SECTION27 and the TAC going public with details of Ikho’s death. In response to GroundUp’s questions, Mokgokong wrote, “Whilst you may have engaged those health practitioners that have articulated the ‘careful and slow’ processes, the HPCSA has had the privilege of engaging with some stakeholders that have commended it for the quick and efficient manner in which certain disciplinary matters have been handled.”

The letter Mokgokong sent to SECTION27 on 10 September and Heywood’s response on 19 September are available here in one PDF document. Ikho’s surname is redacted.

HPCSA response to GroundUp questions

On Friday 1 November GroundUp sent eight questions to Professor Sam Mokgokong, President of the Health Professions Council of South Africa. Here is his response, unedited.

GroundUp: 1. Have you taken any action against any medical practitioners since the details of Baby Ikho’s death were made public on 11 September?

Mokgokong: As was pointed out in the letter that you refer to above (10 September 2013), the HPCSA has not as yet taken any disciplinary action against any practitioner relating to the death and /or publication of information relating to baby Ikho.

GroundUp: 2. Did you receive the approval of your council before sending the letter to Heywood?

Mokgokong: The President or any functionary of the Council, does not need permission to articulate policies, regulations and or applicable legislative provision that relate to the functioning of the HPCSA.

GroundUp: 3. Is it standard HPCSA procedure to issue warnings to people without their being a complainant?

Mokgokong: The HPCSA has through the years adopted a pro-active stance with regard to issues such as Baby Ikho’s death. Such approach entails interacting with the National Department to raise issues that might be of concern in line with our mandate in terms of the Health Professions Act. As part of this mandate, we also have a responsibility to interact with any stakeholder relating to “all matters affecting the education and training of persons in, and the manner of the exercise of the practices pursued in connection with the diagnosis, treatment or prevention of physical or mental defects, illnesses or deficiencies in human kind”, as provided for by Section 3(f) of the Health Professions Act 556 of 1974 as amended.

The HPCSA’s approach is a preventative one. It was and still is our intention to advise that publication of certain information violates certain legal provisions. The publication of such information may inevitably lead to disciplinary action by the HPCSA of any practitioner/s (clinicians) that are complicit in the publication. The violation of the provisions of the National Health Act directed to protect the confidentiality of healthcare information of patients in circumstances where the source is a practitioner registered with the HPCSA, is clearly within the HPCSA’s mandate.

GroundUp: 4. Did you seek permission from Ikho’s mother to send the letter?

Mokgokong: Your attention is drawn to the fact that the Health Professions Act 56 of 1974, as amended, places an obligation on the HPCSA to act in respect of all matters affecting the manner of the exercise of practices persued in connection with any diagnosis, treatment and/or prevention of physical or mental defects, illness or deficiencies in human kind. As such, I am sure you will agree, the death of Baby Ikho and subsequent events by any health practitioner registered with the HPCSA, falls squarely within the jurisdiction of the HPCSA. Failure to address any issue relating to this matter, will tantamount to abdicating responsibility by the HPCSA. The HPCSA does not therefore need any permission to executive it legislated mandate.

GroundUp: 5. Did you at least seek the views of Ikho’s mother before sending the letter?

Mokgokong: The above response (No 4) is applicable to this question also. The mandate of the HPCSA is spelled out in various pieces of legislation. The HPCSA has an obligation to protect the rights of deceased baby Ikho and further ensure that any registered practitioner complicit in the contravention of any legislative and/or ethical provision is dealt with in accordance with applicable ethical and /or legislative provisions.

GroundUp: 6. How did the HPCSA find out about the pending publication of the SECTION27/TAC report?

Mokgokong: A registered health practitioner who felt that the rights of the deceased baby were being violated and who further highlighted possible unprofessional conduct on the part of a practitioner that had handed over the medical records in contravention of section 17(2) of the National Health Act of 2003 brought this matte to the attention of the president of the HPCSA, on condition of anonimity.

GroundUp: 7. From a number of health professionals we have spoken to, the HPCSA appears to move very carefully and slowly on disciplinary issues. Why in this case did you act so swiftly?

Mokgokong: The HPCSA is guided by Rules, Regulations and the Act on disciplinary issues. There are also a number of guidelines with regard to when and how disciplinary action will be taken. These are prescriptive with regard to time frames and the nature of action that the HPCSA can take in such disciplinary matters. Whilst you may have engaged those health practitioners that have articulated the “careful and slow” processes, the HPCSA has had the privilege of engaging with some stakeholders that have commended it for the quick and efficient manner in which certain disciplinary matters have been handled.

GroundUp: 8. I understand that Mark Heywood responded to your letter and that you have not yet responded to him. Are you intending to do so?

Mokgokong: Correspondence has been drafted and sent to Mr Heywood.