Advocate Boyce Mkhize

INVESTIGATION INTO THE CONDUCT OF HEALTHCARE PRACTITIONERS THAT LED TO THE RELEASE OF MR SHABIR SHAIK ON MEDICAL PAROLE

Statement as read by HPCSA Registrar, Advocate Boyce Mkhize, April 20 2009

Introduction

Mr Shabir Shaik was released on medical parole around March 2009 based on the decision by the Durban Westville Parole Board.  This release attracted huge media attention subsequent to which, the Democratic Alliance (DA) lodged a formal complaint with the Health Professions Council of South Africa (HPCSA), essentially urging the HPCSA to investigate whether the release Mr Shaik on medical parole was justified or not.  The DA sought to analyze the Correctional Services Act provisions relating to medical parole and submitted that Mr Shaik may not have been eligible for medical parole and that his release may have been actuated by political considerations given his assumed relationship with the President of the African National Congress (ANC), Mr Jacob Zuma.

SCOPE OF INVESTIGATION

The complaint by the DA required the HPCSA to investigate whether or not the doctors involved in the compilation of reports which served as a basis for consideration by the Parole Board, may have been influenced to compromise their independence in order to influence an undue release of Mr Shaik.  In essence, the question to be asked was whether the doctors concerned falsified, misrepresented or committed an irregularity or professional misconduct in the compilation of the medical reports that informed the decision for Mr Shaik's medical parole. 

It is important to note that the HPCSA could not and would not investigate the medical parole processes as this aspect falls outside the mandate of the HPCSA.  The ambit of the HPCSA investigation would and indeed was confined to the conduct of the doctors.  The HPCSA mandate is to develop and maintain a framework for good ethical behavior amongst all professionals registered with it.  The said ethical frameworks are geared towards protecting the public in the context of a doctor-patient relationship and any conduct by a health practitioner should be evaluated against its impact on the doctor-patient relationship.

THE COMPLAINT

The complaint by the DA did not meet the requirements of a complaint for the purposes of an HPCSA investigation in that the complaint was too broad and too general to warrant the institution of an investigation.  Complaints lodged with the HPCSA should as a matter of course disclose the alleged misdemeanor based on a professional engagement between a doctor and a patient.  The complaint lodged by the DA did not meet this requirement and accordingly created an impression that this was more a political matter than a matter of professional ethics as between doctor and patient relationship.  Ordinarily and based on this consideration, the HPCSA could and should have dismissed the complaint on this ground alone.

However, given the huge public debacle and the undue involvement of doctors in a matter that had little to do with the ethics of medical practice, the HPCSA felt it necessary to investigate the conduct of the doctors in relation to the reports that they issued and particularly to establish whether the medical reports produced were fabricated or in any way falsified.

THE FINDINGS

Although there was reference only to three doctors initially, the HPCSA actually found that Mr Shaik was under the care of several doctors over a long period of time.  A number of doctors prepared reports on the condition of Mr Shaik which reports were considered by the Parole Board.  We were advised, in consultation with members of the Correctional Services Department of the Durban-Westville Prison, that the Parole Board cannot and does not act on the basis of a single medical report.   As a matter of fact, we were advised that Mr Shaik's medical parole came before the attention of the Parole Board around November 2008 and the Parole Board deferred its decision and recommended that the matter be reconsidered around March 2009.  We were further advised that the Parole Board took this decision in order to adopt a much more cautious approach in order to satisfy itself that the condition of Mr Shaik indeed warranted the granting of medical parole.  Clearly, this is a decision that could not have been based on one medical report.

The HPCSA had access not only to the medical reports compiled by a number of doctors on Mr Shaik's condition but also his voluminous clinical records obtained from Inkosi Albert Luthuli hospital.  We have established that all the medical reports compiled by all practitioners involved in the Shaik matter were consistent with one another in that the diagnosis and prognosis of Mr Shaik was similar.  We have further established that Mr Shaik's condition and its gravity was confirmed by an independent specialist outside of KwaZulu-Natal, based in the University of Cape Town, which rules out the possibility that there may have been some collusion between the doctors.

We have further established that the medical reports compiled were consistent with the clinical records which clinical reports are computer generated based on the medical condition of the patient. This means, these clinical reports could not be manipulated in any way as they are a direct import of the patient's condition taken from various equipment readings.  This further rules out any possibility of collusion or falsifying records.  The clinical reports as well as the medical reports reveal a gravely serious medical condition of Mr Shaik and the Committee of Preliminary Inquiry of the HPCSA consisting of independent medical experts satisfied itself that the medical reports by various doctors were not exaggerated, misrepresented or falsified. 

It is also important to emphasize that the doctors involved in report writing did not have any decision making powers to grant medical parole.  Theirs was to provide a basis for consideration by the relevant decision-making authorities.

We therefore conclude that:-

• There is no evidence to suggest that any of the practitioners involved in the treatment of Mr Shaik and compilation of medical reports pertaining to his condition were unduly influenced in any manner;

• There is also no evidence that any of the practitioners misstated or misrepresented or falsified or exaggerated Mr Shaik's medical condition in order to influence or procure an inappropriate release of Mr Shaik on medical grounds; and

• None of the reports by the practitioners involved were as a result of a political consideration or relationship or status of Mr Shaik to the President of the ANC, Mr Jacob Zuma.  To the contrary, the reports were a true reflection of pure clinical observations and records which are not susceptible to manipulation or misstatement.

We therefore find nothing untoward or unethical or unprofessional in the conduct of all the practitioners involved in providing medical care to Mr Shaik and in the reports they compiled on his condition.

Statement issued by the Health Professions Council of South Africa, April 20 2009

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