Code of Conduct
1.1 The Code of Conduct set out in PART A, the Peer Review Procedure in PART B or alternatively the Ombudsperson Review Procedure in PART C, and Penalties prescribed in PART D constitute a self-regulatory mechanism accepted by agreement between the practices and the individual constituent partners, shareholders and directors of such practices and all related entities of such practices to ensure that none of the proscribed conduct shall take place or be allowed to continue.
1.2 This Code of Conduct and Review Procedures are accepted voluntarily and by agreement by the signatories hereto, and shall have the force of a valid contract between all the persons referred to above as represented herein. The participants agree that the signature of the representative of the participating pathology practices hereto bind the individual partners of those pathology practices and related entities as defined hereunder. The signatories in turn guarantee their authority to bind their respective practices, all the individual partners and all related entities as defined hereunder.
1.3 In the event of a breach of the Code of Conduct in PART A the practices and/or the individual partners, shareholders and directors and/or related entities, whom it is alleged is/are responsible for such breach voluntarily submit(s) them/it/him/herself to the Peer Review Procedure contained in PART B or alternatively the Ombudsman Review Procedure contained in PART C of this Code, and if applicable, to the penalties in PART D.
1.4This Code and the procedures and sanctions created by it remains subordinate to the powers, functions, and rules of the Health Professionals Council of South Africa. This Code encompasses the desire of the signatories to exercise their rights to freedom of association and to adopt internal rules so as to regulate conduct within their internal sphere of operation.
In this document, the following terms shall have the meaning assigned to them unless the content clearly indicates a contrary meaning:
2.1 "the Code" shall mean the Code of Conduct set out in Part A of this document.
2.2 "the PRP" shall mean the Peer Review Procedure set out in Part B: Panel Option of this document.
2.3 "the ombud" shall mean a person appointed as an ombud and functioning as set out in Part C of this document.
2.4 "the related entities" shall mean all companies, trusts, close corporations and other business entities in which,
and whether directly or indirectly, in whole or in part, any of the participating pathology practices, the signatories, or the individual partners, associates, professional assistants, directors or shareholders of such practices have, or any member of their immediate families have, a financial interest of any nature.
2.5 "the signatories" shall mean the signatories to this agreement who guarantee that they are the duly authorised representatives of their pathology practices and/or the related entities.
2.6 "a participant" shall mean the participating pathology practices who are signatories to this document, the individual partners, associates, shareholders,directors and professional assistants of such practice, and the related entities.
2.7 "a complaint" shall mean an allegation of a contravention of the Code made by a participant or any other person.
2.8 "the complainant" shall mean a participant or any other person legal or natural, that lays a complaint against a participant in terms of the PRP or for the purposes of Part C Review Procedure : Ombudsman Option.
2.9 "the respondent" shall mean the pathology practice, individual partners, associates, professional assistants, shareholders or directors of such practice, or the related entities against whom a complaint is lodged in terms of the PRP, or Review Procedure set out in Part C: OMBUD OPTION of this document.
2.10 "the NPG" shall mean the National Pathology Group.
2.11 "the PPRC" shall mean the Preliminary Peer Review Committee appointed by the Chairperson of the NPG to undertake the initial investigation of an alleged breach of the Code.
2.12 "the Executive" shall mean the Executive Committee of the NPG to whom complainant or respondent who is aggrieved about the finding and/or penalty imposed by the PPRC or alternatively by an ombudsman, may appeal, which Executive (if it so decides) may be assisted by a person with adequate experience in the administration of justice to be present as an assessor and to advise the Executive on matters of law, procedure and evidence; provided that if a member of the Executive is a direct profit-sharing partner or shareholder of the complainant or respondent he/she shall recuse himself/herself.
2.13 "the penalties" shall mean the penalties which may be imposed on a respondent in terms of Part D of this document.
2.14 "an investigator" shall mean a person of the medical, legal or accounting professions of at least 10 (ten) years professional standing, not in any way associated with a complainant or respondent, appointed by the chairman of the NPG, the PPRC or the Executive as the case may be, to obtain further information in respect of the complaint referred to in B.1 or the reply referred to in B4.1.
2.15 "medical practitioner" shall mean any medical practitioner or any other healthcare professional registered with the Health Professions Council of South Africa ("HPCSA") or other statutory body and shall include, where the context allows, all Independent Practitioner Associations or similar associations or organisations, their holding companies, subsidiary companies, their employees and / or associates.
2.16 "market related" shall mean, in respect of rental, rental similar per square metre to what others in the premises or hospital pay for similar accommodation and in respect of any other goods, equipment or consumable items it shall mean a price not below that which a participant will pay or has paid for such goods, equipment or item.
2.17 "sublet depot" shall mean premises or space in premises rented by a medical practitioner in a hospital or associated medical consulting complex which the medical practitioner lets to the participant for a market related rental and subject to the terms and conditions of a written lease.
3. GENERAL PROVISIONS
3.1 A complainant shall be entitled to elect in writing whether he/she/it wishes the complaint to be adjudicated in terms of either the PRP: PANEL OPTION (set out in Part B) or the Review Procedure: OMBUDSMAN OPTION (set out in Part C). Once an election has been made, the complainant may not change his/her/its decision. The decision of the complainant shall be binding upon the respondent as well as the NPG.
3.2 Proof on a preponderance of probabilities of a breach of the Code is required before a finding of guilty may be made by the PPRC, an ombudsman or the Executive.
3.3 The Code and the Review Procedures are accepted voluntarily and by agreement by participants, and bind them to the terms thereof.
3.4 The representatives who are signatories to this agreement furthermore guarantee their authority to bind their respective practices, partners, associates, professional assistants, shareholders or directors and the related entities, to the terms of this agreement.
CODE OF CONDUCT
The participants agree that the interests of the patient in every instance are paramount and that the Code of Conduct should not, in bona fide circumstances, be construed so as to preclude lawful conduct which is directly in the interests of the patient or in the interest of providing an efficient service to the patient.
Consequently, any conduct of a participant which in the strict sense constitutes a transgression of the Code of Conduct, but which falls within the criteria set out above may be condoned and excused by the adjudicator under the PRP : PANEL OPTION (set out in Part B) or the Review Procedure: OMBUDSMAN OPTION (set out in Part C) ("the adjudicator") and, if so condoned and excused, shall not be a transgression of the Code; provided always that the adjudicator finds that such conduct was necessary, took place in good faith and was not an attempt to circumvent the provisions of this Code of Conduct.
A1 The participants all subscribe to the authority of the Health Professions Council of South Africa ("the HPCSA") and the Medical and Dental Professions Board or its successor in title and its rules and regulations.
A2 The participants subscribe to the principle that they are entitled to market their practices and the services provided by them
in a professional manner, subject to the ethical rules and rulings of the Health Professions Council of South Africa or marketing guidelines issued by the HPCSA or the Medical and Dental Professional Board ("the MDPB").
A3 The purpose of this Code of Conduct is, inter alia, to preclude the sharing of any income generated from pathology services with any medical practitioner or hospital staff member and to create an environment where there is no incentive, save for good service or technical excellence, for medical practitioners or hospital staff members to favour or nominate one participant above another. Consequently, the participants agree that any act or omission by a participant, a related entity or any other person acting on his/her behalf or upon his/her instigation which is intended, designed or being tacitly or reasonably understood as calculated to unfairly remunerate, compensate or be unfairly to the benefit of a medical practitioner or hospital staff member requesting from a participant pathology services on behalf of patients or for referring patients to the participant's pathology practice, shall be deemed to be unprofessional conduct by the participant which shall, even if not proscribed expressly in the ethical rules, rulings, policy statements or guidelines of the HPCSA or MDPB, upon the required proof of such conduct, render the respondent liable to one or more of the penalties. Therefore, without limiting the generality of the aforegoing, the following conduct shall be deemed to be unprofessional conduct as meant in this clause:
Remuneration / Compensation / Consideration / Benefit
A3.1 the transfer of shares in any company by a participant to a medical practitioner or his/her spouse or any relative or nominee of such practitioner or anyone associated with him/her or his/her practice for no consideration or at a price below market value in return for the medical practitioner requesting pathology services from the participant;
A3.2 paying or offering a salary or any other form of remuneration or giving valuable consideration to any person who does not render a bona fide service to a participant, or who is not in the employment of or contracted to a participant, including any staff member of a hospital or any person, natural or juristic, contracted to a hospital;
A3.3 paying or offering to pay a medical practitioner or his staff, or any staff member of a hospital for venisections, collection of specimens or the provision of clerical or transport services by the medical practitioner or any staff member of a hospital, whether such payment is:
- for individual services; and/or
- paid as a percentage of turnover; and/or
- a lump sum payment;
A3.4 allowing a participant's nurse to visit a medical practitioner's room for any purpose other than for venisections or any other legitimate purpose;
A3.5 permanently placing a participant's nurse in a medical practitioner's rooms for venisections or any other purpose;
A3.6 paying or offering to pay for the holiday, air, bus or rail fare of a medical practitioner or any staff member of a hospital or his/her spouse or any relative of any nominee of such practitioner or staff member or anyone associated with him/her or their practice, or providing to any such person holiday or timeshare accommodation free of charge or at a rate below a market-related rate;
A3.7 paying or offering to pay to a medical practitioner or any of his/her staff members or a member of the staff of a hospital any fee or commission or giving valuable consideration of whatever nature for collecting monies from a patient for services provided by a participant or offering a rebate or discount for doing so;
A3.8 paying or offering to pay any monies to a medical practitioner or any nominee of such practitioner by way of premiums for an insurance policy or into any trust, medical scheme, bank or credit card account or mortgage bond account or fund for the purchasing of shares in a company, mutual fund units or similar schemes;
A3.9 paying or offering to pay any monies for continuing education of a staff member of any hospital or a medical practitioner or the education of any spouse, child, dependant or nominee of such staff member or practitioner, or for attending any congress or conference;
A3.10 any turnover related payment to a medical practitioner, of which the amount depends on the amount of work referred to the participant by the practitioner;
Equipment / Consumable Items / Medical texts
A3.11 procuring, purchasing or offering to purchase for or supply to a medical practitioner any clinical or laboratory equipment;
A3.12 billing or offering to bill on behalf of a medical practitioner or any third party who has purchased or leased any item or equipment, including clinical or laboratory equipment;
A3.13 purchasing or offering to purchase or providing or offering to provide free of charge or at a nominal charge electronic computers and related hardware or software programmes, maintenance or support in respect of such computers or programmes, telefax machines or cellular telephones to a medical practitioner, provided that the participant shall not be precluded from providing a medical practitioner with software programmes which enable the medical practitioner to be linked electronically to the participant for the sole purpose of downloading pathology reports and other laboratory data;
If a participant has at any time from 1 March 2000, supplied the equipment referred to above in contravention of this clause, the participant shall take all reasonable steps to secure the return of the equipment or to arrange for the specific medical practitioner to purchase the equipment at book value. Within six weeks of any participant becoming a member of the NPG or the Code of Conduct coming in force, whichever is the later, a participant shall provide the NPG with an inventory signed by his/her auditors identifying the equipment supplied to medical practitioners and its value recording whether such equipment has been retrieved by the participant or the amount which the medical practitioner paid for it.
A3.14 supplying or offering to supply to a medical practitioner any consumable items free of charge or at a price which is below the market related price unless such items relate solely to or are necessary for the procurement of specimens for the participant's laboratory;
A3.15 purchasing or offering to purchase medical texts, including but not limiting the generality of the aforegoing, text books and journals, in printed form or in any electronic or computer format for the sole or primary use of a medical practitioner, save insofar as it relates to the professional services which the participant performs and it is done bona fide with a view to improving the service and the medical practitioner's knowledge of that service. Such conduct should also be condoned if it is directed at avoiding over-servicing. "
A3.16 paying or offering to pay for the provision of consulting rooms, surrounds of such rooms as well as the equipping, decorating and furnishing of such rooms and surrounds for a medical practitioner or the spouse, dependant or any nominee of such practitioner, intended for any such persons' professional or personal use;
A3.17 giving or offering any other form of reward or incentive, such as a contribution to a research, travel or library fund of a medical practitioner or a relative or member of staff or other nominee of such practitioner, either directly or indirectly.
Marketing, entertainment, donations and gifts
A3.18 entertaining a medical practitioner, his staff or hospital staff without the participant or an employee or representative of the participant being present and in a manner which extends for more than one day;
A3.19 making or offering to make any donation or gift to any medical practitioner or any staff member of a hospital, spouse, dependant or nominee of such practitioner or staff member, other than a card or message of congratulations, greetings, good wishes or condolences, a donation to a bona fide charity on behalf of any such person or a token gift which would not ingratiate the recipient to the participant;
A3.20 payment or part-payment by a participant of the rental of a medical practitioner's consulting rooms or other professional facilities, or the salary of staff employed by such practitioner, from which the participant derives no benefit other than the referral of patients or support of the participant's practice;
A3.21 waiver of rental payable by a medical practitioner to a participant or receipt by the participant of rental payments by a medical practitioner, his family or dependants or any entity in which the medical practitioner has any interest, at a rental which is not market related.
A3.22 payment by a participant of rental for floor space, or the use of equipment or other facilities at a rate or rates which is/are not market related;
A3.23 payment of rental at a premium by one participant to a hospital or other facility in order to prevent another participant from obtaining premises in such hospital or facility;
A3.24 subsidising by way of a monetary payment or any other valuable consideration any medical practitioner's rent; provided that a participant shall be entitled to rent floor space ("sublet depot") from another medical practitioner ("the sublessor"):
Administrative / Regulatory / General
- in a hospital and associated medical consulting complex, if a participant is unable to find other suitable accommodation in such hospital or associated medical consulting complex; or
- in any other premises only if on application by the participant, two-thirds of the Executive of the NPG approved of the participant renting such sublet depot; and provided further that:
- the rent paid for such accommodation is market related and the a written lease agreement is entered into by the sublessor and the participant;
- a participant may ordinarily only set up one such depot in a hospital or associated medical consulting complex unless on application by the participant, two-thirds of the Executive of the NPG decides that a second depot is justified; and
- the participant concerned advises the NPG in writing of the location, rental and the participant's staff at all its current sublet depots within a reasonable time of this Code of Conduct coming into force or, subject to the provisions of (b) above, in respect of future sublet depots, within a reasonable time of the participant renting the sublet depot;
- the participant's name is clearly and prominently displayed outside the sublet depot;
- other participants are not prevented by any participant from obtaining a similar depot in the hospital or associated medical consulting complex.
- staff at the sublet depot:
- are employed by, and on the payroll of, a participant and a participant pays the full salary and/or employee benefits of such staff;
- can be identified as forming part of the pathology practice of the participant by means of any acceptable form of identification or uniform;
- must be available to provide a service to patients referred by medical practitioners other than the sublessor;
- may not render any services to the sublessor in respect of any day to day functions of his/her practice.
A3.25 not complying with the NPG's guidelines or requirements for Request Forms and Test Profiles as determined by the Executive from time to time;
A3.26 failure to bill for pathology tests in accordance with the guidelines laid down by the South African Medical Association and the NPG;
A3.27 breaching the confidentiality of information disclosed during the Peer Review Procedure or Ombudsman inquiry, or of a complaint lodged, other than by way of the institution of legal proceedings or as authorised in PART D of this document;
A3.28 harassing a participant by continuous unnecessary and unsubstantiated complaints in terms of the Code.
Allegations and complaints in terms of the contents of the clauses section A3, A3.1 28 as contained in this document may be made by participant practices, individual participants or medical aid administrators or funders. These will be dealt with in terms of the clauses
outlining the procedures, as set out in either the ombudsman or panel options below.
In terms of the process and procedure as set out in the peer review procedure, participant practices and individual participants agree to appear to give evidence should they be required to do so by the panel or ombudsperson.
PEER REVIEW PROCEDURE: PANEL OPTION
B1 The managing partner or director of a participant who alleges or claims that another participant has contravened a provision of the Code, shall arrange meeting with, or report the alleged contravention to the managing partner or director of the alleged offending participant by telephone, to establish the factual position and to find a mutually acceptable solution within 7 (seven) days of the first contact between the managing partners.
B2 In the event of the managing partners or directors being unable to resolve the matter, within 7 (seven) days or in the event of the complainant being a non-participant, the complainant shall submit to the Chairperson of the NPG or his alternate or stand-in:
B2.1 a written formulation of the alleged contravention with reference to the particular paragraph(s) of the Code which has (have) allegedly been breached, identifying the respondent and if available providing a summary of the facts upon which the alleged contravention is based so as to enable the respondent to identity with reasonable certainty what the charge is it/he/she has to answer; provided that in the event of it being an unresolved matter in terms of B1 the complaint must include a statement to that effect; and
B2.2 all documentation upon which he/she/they intends or intend to rely in support of the alleged contravention of the respondent.
B3 The Chairperson of the NPG, or his alternate, or stand-in, shall within 15 (fifteen) days of receipt of the complaint:
B3.1 if he is in doubt as to whether a peer review procedure should be instituted, appoint an investigator to consult with or seek information from any person, including the person against whom the complaint has been lodged, in connection with the complaint in question;
B3.2 send a copy of the complaint by registered mail to the respondent at his/her/its last known address, or the address appearing in the relevant register held by the HPCSA, with a request to reply thereto in writing within the time limit in B4 below;
B3.3 appoint the PPRC consisting of at least 2 (two) participating pathologists who are not in any way associated with or connected to the complainant or the respondent and give notice thereof to the complainant and the respondent by registered mail.
B4 The respondent shall within 20 (twenty) days of the date appearing on the proof of registered mail slip:
B4.1 if he/she/it so wishes reply in writing to the complaint and in his/her/its reply admit or deny the alleged contravention and submit all documentation which he/she/it intend(s) to rely on in support of his/her/its defence to the Chairperson of the NPG ("the reply");
B4.2 indicate whether he/she/it consents to the appointees to the PPRC or give reasons for objecting to the appointment of one or both of the committee members on the ground only of a justifiable perception of bias on his/her/their part.
B4.3 In the event of:
- there being no objection to the members of the PPRC or no consent by the respondent, they shall be deemed to be appointed by agreement;
- there being no agreement between the parties with regard to the appointment of the members of the PPRC,
then the Chairperson of the NPG in his/her sole discretion shall appoint the members of the PPRC and the appointments shall be final and binding on both parties.
B5 After receipt of the reply, or if no reply is received from the respondent, the PPRC shall:
- consider the complaint and the reply, if any; and
- if, in their opinion there is no prima facie proof of a breach of the Code, advise the complainant and the respondent accordingly; or
- if the PPRC is in doubt as to whether there is a breach of the Code of Conduct, they may in connection with the complaint or the reply in question, appoint an investigator to consult with or seek information from any person, including the person against whom the complaint has been lodged;
- if there is prima facie proof of a breach of the Code, formulate the matters/disputes in writing and give notice by registered mail thereof to both parties to enable them to prepare for the formal peer review inquiry process; or
- if there is prima facie proof of a breach of the Code and the PPRC is of the opinion that the matter should, as a result of the prima facie seriousness thereof, be adjudicated by the Executive, then it shall refer the complaint and the reply and all other relevant documentation to the Executive and advise both the complainant and the respondent thereof by registered mail.
B6 If the PPRC decides to hold an inquiry itself then the format and procedure for the peer review process shall be determined by the PPRC; provided that none of the parties shall be entitled to legal representation in this forum and provided further that:
B6.1 the proceedings shall be of an inquisitorial nature;
B6.2 the parties shall receive at least 20 (twenty) days notice of the date, time and venue, and they shall at least 72 (seventy-two) hours prior to the commencement of the inquiry, exchange all statements of witnesses whom they intend to call at the inquiry;
B6.3 the enquiry is of an internal nature and does not preclude steps being taken on the same or similar grounds in terms of any law or competent body.
B7 The PPRC shall also be entitled in its sole discretion to:
- rule on the manner in which evidence shall be taken down;
- lay down time limits and the consequences of non-compliance with procedural rules and time limits as well as the conditions for any postponements, if any;
- lay down the procedure for determining interim legal points by a legal practitioner of at least 10 (ten) years standing, or as agreed between the parties, without reference to a court of law;
- not act in accordance with the strict laws of evidence which apply in legal matters and allow any statement or document without the necessity to call the author thereof to have it identified under oath;
- summon any witness it deems necessary to appear before it to give evidence;
- put questions to the complainant, the respondent or any witness;
- appoint an investigator to assist them in obtaining further information concerning the complaint or the reply.
B8 The PPRC shall:
B8.1 after allowing each party to present his/her/their case, consider the evidence and arguments advanced in camera and come to a finding;
B8.2 thereafter announce their finding and the reasons therefore in writing to both parties, and in the event of the PPRC finding that the Code has been breached, offer both parties an opportunity to address the PPRC on a suitable penaltyand/or corrective action to be taken by any or all parties.
B9 The PPRC shall thereafter deliberate in camera on a suitable decision and announce it to both parties; provided that such finding or decision shall be limited to one or more of a combination of those contained in PART D.
B10 Should any one of the parties feel aggrieved about the finding of the PPRC and/or the decision, then he/she/they shall within 5 (five) working days of the finding or imposition of particulars of the decision/finding, be entitled to refer the disputes as formulated by the PPRC together with all documentation and witness statements, for review to the Executive on the terms set out hereinafter, which referral shall for purposes thereof be regarded as an agreement to adjudicate the dispute by way of peer review by the Executive, assisted by a person with adequate experience in the administration of justice as assessor and to advise on matters of law, procedure and evidence.
B11 The peer review process to be followed by the Executive shall take the same format as in B6 above; provided that the parties shall not be entitled to legal representation in this forum, but will be entitled to submit written representations to the Executive; such representations must reach the Chairperson of the Executive at least one month before the meeting of the Executive.
B12 The Executive may dismiss or confirm the finding of the PPRC and the penalty imposed by it on retrial, or may make an order reversing, varying, or modifying the finding of the PPRC or increasing or decreasing any penalty imposed by the PPRC or may make such other order, including an order as to costs, as it may deem appropriate.
B13 The costs:
- incurred as a result of the withdrawal of a complaint or appeal for retrial by the Executive, shall be borne by the party who withdraws the complaint or appeal;
- of the preliminary peer review process shall be determined and awarded by the PPRC;
- of the second peer review proceedings, both in respect of interim and final costs orders, shall be determined and awarded in the sole discretion of the Executive.
B14 The PPRC and/or the Executive, as the case may be shall, in the event of the dispute being settled between the complainant and the respondent outside of the peer review process, but after it having been initiated, be borne in equal shares by both parties unless otherwise agreed between them.
B15 Both peer review processes shall be treated as confidential and be respected as such by both parties, witnesses, an investigator, members of the PPRC and the Executive, unless;
- a party to such process is authorised by the PRP to breach such confidentiality;
- or if a respondent approaches a court of law for relief;
- if, in the opinion of the PPRC or Executive, the case has to be referred to the Health Professionals Council of South Africa and/or any appropriate body with the authority to deal with any or all the issues raised in the peer review process(es).
B16 The finding and decision imposed, if any, by the PPRC or the Executive, as the case may be, shall be final and binding on both parties.
B17 In the event of a finding of guilty the Chairperson of the NPG shall record the identity of the complainant and the respondent, the finding and the corrective action required, in a register and retain all the documentation, and if applicable, the transcript of proceedings for a period similar to the period required for the keeping of clinical records by a medical practitioner and treat such documentation as confidential.
B18 The Chairperson of the NPG shall issue a certificate under his hand of any previous finding and corrective action required/imposed in respect of a respondent if the complaint proceeds to an inquiry. The secretariat shall hand the certificate of previous findings and penalties to the chairperson of the relevant tribunal in the event of a finding of guilty but before considering the imposition of a penalty. Such certificate shall be prima facie proof of the facts contained therein.
B19 An investigator appointed in terms of the Code who is required or authorised to perform any duty on behalf of the Chairperson, the PPRC or the Executive, or to make any inspection, may on appointment enter the practice of the complainant or respondent to carry out his investigation, or if he is unable to secure an appointment within 24 (twenty-four) hours of requesting an appointment, to enter and carry out such investigation at any time reasonable for the proper performance of such duty or the carrying out of such investigation.
B20 Any person who fails to give, or refuses access to an investigator, if he requests entrance to any practice, or obstructs or hinders him in the execution of his duties, or who fails or refuses to give information that he may lawfully be required to give such person, or who gives to such person false or misleading information knowing it to be false or misleading, shall be guilty of misconduct in terms of this Code.
B21 An investigator shall be issued with a document signed by the chairperson of the NPG containing the name of the investigator, as well as a statement to the effect that such person is empowered to perform a specific duty or make a specific inspection in terms
of this peer review procedure. An investigator shall not be entitled to exceed the parameters of his mandate.
B22 Whenever an investigator performs any duty or makes any inspection as contemplated in this peer review procedure, he shall exhibit to any person affected thereby the document issued to him in terms of Clause B21.
B23 An investigator shall only be entitled to disclose information obtained in the course of his investigation to the person who appointed him, who shall in turn be entitled to disclose such information at the hearing.
B24 No legal proceedings of whatever nature shall lie against a member of a peer review committee, the investigator or the Executive in respect of any act done or duty performed in good faith and in accordance with the Code; participants hereby waive any right that they might otherwise have had to bring any civil proceedings against such a member, investigator or the Executive. The peer review committee or the Executive may, prior to commencing any inquiry, require a complainant and/or respondent to waive in writing any such right in order to indemnify all members of the peer review committee, the investigator and/or all members against any liability of whatever nature.
REVIEW PROCEDURE : OMBUDSMAN OPTION
C1 One or more ombud shall be appointed by the Executive of the NPG.
C2 (a) Any practising pathologist of at least 10 (ten) years' practice experience
OR person of "standing" within the pathology community or person who formerly practised as pathologist for at least 10 (ten) years, or
(b) any practising attorney, advocate or professor of law of at least 10 (ten) years' experience or a retired judge of the High Court or of the Supreme Court of Appeal or of the Constitutional Court or person of standing in the legal community, may be appointed as ombud; provided that the person(s) thus appointed shall be a person or persons whose personal integrity and profession standing are beyond doubt.
C3 The appointment of an ombud shall be for a period determined by the executive committee, provided that in the event of an inquiry into a complaint being conducted by an ombud not being concluded on or before the date on which the period of appointment expires, the appointment shall continue until 30 (thirty) days after the ombud has handed down his/her decision in the matter in writing. Alternatively a person as described in par C2 may be appointed ad hoc to serve as ombud to conduct an inquiry into a particular matter or matters as specified by the Executive.
C4 The terms as to remuneration of an ombud and reimbursement of his/her expenses, shall be agreed upon between the ombud and the Executive before his/her/their acceptance of the position.
C5 Where a pathologist (or former pathologist) is the ombud conducting an inquiry, he/she may if he/she so wishes, request the Executive to appoint an attorney, advocate, law professor, or retired magistrate or judge to advise him/her on matters of law, procedure and evidence. Where a legal practitioner, law professor or retired judge is the ombud conducting an inquiry, he/she may if he/she so wishes, request the Executive to appoint a pathologist or former pathologist to advise him/her on medical and/or professional and/or ethical matters. Any decision made at any stage of the inquiry is, however, the responsibility of the ombud.
C6 A complaint must be lodged with the Chairperson of the Executive (unless the complaint is against the Chairperson himself, in which event the complaint must be made to any other member of the Executive) and must be in writing and signed by the complainant. The Chairperson (or alternatively another member of the Executive) shall send or hand the complaint to an ombud who in his/her opinion will be able to conduct further proceedings at such place which would be reasonably convenient for both the complainant and the respondent.
C7 The ombud may refuse to accept any complaint which in his/her opinion is manifestly fraudulent, frivolous, malicious or vexatious or which prima facie does not constitute a contravention of the Code, unless it is satisfactorily amplified by further information supplied by the complainant or another person.
C8 Upon acceptance of a complaint, the ombud shall forthwith transmit it to the respondent and endeavour to achieve a settlement by mediation which may include meeting with the parties on an informal basis with the object of achieving a speedy resolution.
C9 Should a mediation meeting appear to be impossible to arrange within a reasonable period or mediation fail to result in a settlement, the ombud may require the complainant to submit, within 7 (seven) days, any further documentation which he/she (the complainant) wishes to use in support of his/her complaint and/or furnish an affidavit or affidavits in support of the complaint.
C10 The ombud shall forthwith submit a copy of further documentation (if any) supplied by the complainant to the respondent. The respondent may, if he/she so wishes, within 7 (seven) days of the receipt of such statement submit a written statement to the ombud setting out fully his/her defence together with supporting documentation, if any. The ombud may require the respondent to furnish any further documentation which he/she (the respondent) wishes to use in support of his/her defence and/or to furnish an affidavit or affidavits in support of his/her defence.
C11 The ombud may make his/her decision on the written statements and documentation submitted by the parties but if in his/her opinion it is necessary, the ombudsman may request the parties to meet before him. Such a meeting will take the form of a round-table discussion. The parties shall not be entitled to legal or any other representation at such proceedings, but may each be accompanied by a peer adviser.
C12 In deciding a matter which is the subject of the inquiry, the ombud shall not be bound by the strict legal rules of evidence.
C13 As soon as is reasonably possible after the meeting referred to in par C11, the ombud shall give his/her decision in writing to the parties, setting out briefly the reasons for the decision. In the event of the respondent being found guilty of contravening any provision of the Code, the ombud may impose one or more of the measures provided for in PART D. In addition to imposing such a measure(s), the ombud may in his/her discretion make any order as to costs being paid to the Executive by any of the parties, i.e. the complainant and/or the respondent which he/she (the ombud) may regard as reasonable. In imposing a suitable measure, the ombud take into consideration any proven adverse finding previously made against the respondent by the PPRC, an ombud, or the Executive.
C14.1 Either party to the proceedings may, within 14 days of delivery of the ombud's decision, lodge with the Executive an appeal in writing against the ombud's decision.
C14.2 The notice of appeal shall also set out in reasonable detail, the grounds upon which the appeal is based.
C14.3 Not later than 14 (fourteen) days before the meeting of the Executive at which the appeal may reasonably be considered, any of the parties as well as the ombud, if any or all of them so wish, may make written representations to the Executive or to the Chairperson of the Executive.
C14.4 Neither party nor the ombud will be entitled to appear before the Executive in person or to be legally or otherwise represented at the meeting of the Executive.
C14.5 The Executive may confirm, set aside or vary the finding and decision of the ombud and/or increase or decrease any penalty imposed by the ombud and/or any order as to costs made by the ombud; the decision of the Executive, which must be conveyed to the parties and the ombud in writing, will be final.
C14.6 No legal proceedings of whatever nature shall lie against an ombud or the Executive in respect of any act done or duty performed by him/her in good faith; participants hereby waive any right that they might otherwise have had to bring any civil proceedings against an ombud or the Executive; the ombud may, prior to commencing any inquiry, require a complainant and/or respondent to waive in writing any such right in order to indemnify the ombudsman and/or the Executive against any liability of whatever nature.
The participants in as far as may be necessary, hereby agree and consent that:
D1 if, after an inquiry by the PPRC, an ombud or the Executive, as laid down in PART B or alternatively PART C, it is found, on a balance of probabilities, that a participant, has breached the Code, then the participant and if applicable, all the individual partners, shareholders, directors or related entities shall be vicariously liable and subject to one or more of the following penalties being imposed:
D1.1 a caution;
D1.2 a reprimand;
D1.3 both a caution and a reprimand;
D1.4 corrective action appropriate to the particular bearch or breaches which may include a written agreement to that effect;
D1.5 temporary or permanent disqualification from participating in this self-regulatory review system and impose such conditions as may be appropriate in the particular circumstances;
D1.6 temporary or permanent disqualification from participating in the NPG as a member and impose such conditions as may be appropriate in the particular circumstances;
D1.7 notification to the HPCSA, South African Medical Association of South Africa (SAMA), and/or any organisation or society which is reasonably representative of a material number of medical schemes, and/or the Life Officers Association ("the LOA") by the NPG that a participant has been found guilty of a breach of the Code and that a penalty in terms of D1 -D1.6 has been imposed on a participant; for this purpose, this document duly signed by or on behalf of a participant shall constitute and be deemed to be :
- a consent by the relevant participants to the NPG to give such notice to SAMA, such representative organisation or society, and/or the LOA;
- justification for such organisation or society and/or the LOA to cancel the offending participant's accreditation with such organisation or society and/or the LOA notwithstanding the provisions of B15.
D2 Should the offending participant fail to comply with the penalty imposed by the PPRC, an ombud or the Executive, as the case may be, then the secretariat of the NPG shall:
- refer all the documentation relating to the matter together with the finding to the Health Professions Council of South Africa as a complaint, notwithstanding the provisions of Clause B15; and
- recommend the cancellation of the membership or accreditation of the offending participant to the Executive of the NPG, which shall decide thereon at its next meeting;
- in the event of not adhering to any agreement in terms of Clause D1.4 orto pay the costs of an inquiry, be entitled to issue a civil summons in the name and on behalf of the NPG in any competent court of law to claim payment thereof.
D3 For purposes of D2(c) a certificate signed by the secretary of the NPG shall be sufficient proof of the finding and decisions made in relation to any finding, including the options set out in D1.1-1.7amount due and payable by the participant upon whom the penalty was imposed or against whom the cost order was made.