The legality of the HPCSA's ethical rules 8A – sharing rooms; 23A - financial interest in hospitals and 27A - main responsibilities of health practitioners; should be considered when practitioners are charged with having contravened one or more of these rules at professional conduct inquiries.
The abovementioned rules were made by the Council of the HPCSA in terms of section 61(5) of the Health Professions Act (the Act) and published in Government Notice No. R. 68 on 02 February 2009.
It should be considered that the Council is only statutorily empowered to amend or repeal ethical rules in terms of section 61(5) of the Act. New ethical rules can only be made by the Council in terms of section 49 of the Act.
A point in limine was taken recently that ethical rule 27A did not amend any of the ethical rules made by the Council in terms of section 49. The current ethical rules were made and published in Government Notice No. R. 717 on 04 August 2006. The use of the incorrect empowering provision in February 2009 means that the rules were not properly sourced in law.
The point was conceded at a recent conduct inquiry and the charge of having contravened ethical rule 27A(d) – failure to provide adequate information about costs to a patient before rendering a service – was abandoned by the pro forma complainant.
The ethical rules in question, particularly ethical rule 27A, covers a wide ambit of professional conduct. For example, the rule covers taking clinical informed consent, acting in the best interests of patients, maintaining confidentiality, adequate disclosure of information relating to costs, keeping accurate patient records and how to deal with financial interests in hospitals (Rule 23A) – to name a few.
