The Botswana Health Professions Council (BHPC) was established in accordance with the Botswana Health Professions Act of 2001 with two main objectives, namely: to promote the highest standards in the practice of health care in Botswana, and to serve as a safeguard in protecting the welfare and interests of the public of Botswana in the practice and delivery of health care.
In essence, the BHPC is mandated with the registering of all health professionals in the country after ensuring that they have attained the requisite qualifications and requirements for practice. What has however emerged is that, the BHPC executive committee spends much of its time at the courts of law trying to defend its decisions of refusing to register health professionals or in some cases to deregister those they had initially accepted.
The Botswana Gazette has studied at least five cases in which medical practitioners successfully sued BHPC after their registration applications were either rejected or rescinded. On July 30, 2009, the Court of Appeal in Lobatse delivered a judgment in a case where Ajay Kumar Verma, an optometrist, was challenging BHPC’s decision to deregister him. The council had claimed to have ‘erroneously registered’ Verma. A panel of three Court of Appeal Judges made up of Moore AJP, Mcnally and Foxcroft JJA ruled in favour of Verma and held that the Council had acted ultra vires BHPC Act (Cap 61:02) section 9. The court set aside Verma’s removal from practice by BHPC. Verma’s attorney, Jaoa Salbany had focused his submissions on the procedural aspects of his client’s de-registration. The Court of Appeal ruled that Salbany was right in asserting that “the Health Professions Council is a creature of statute and thus has only such powers as are conferred upon it by the Act’’. The power to de-register in the case of Verma was not found by the judges.
Purporting to act under Section 9 of the Botswana Health Professions Act (Cap 61:02), BHPC deregistered Verma as an optometrist on the ground that he had been “erroneously registered”.
The Court of Appeal however ruled that the provisions of Section 9 of the BHPC Act did not authorise the council to remove the Verma from the roll on the ground that he had been erroneously registered. The council’s reliance on Section 9 was ultra vires the act and unlawful, the Court of Appeal ruled. In yet another case, Francistown High Court Judge Justice Makhwade presided over a matter in which Dr Donald Milton Wells had applied for the review and setting aside of the decision of the BHPC to suspend him, refusing to hear him, and refusing to renew his practising certificate. Dr. Wells wanted the court to order the BHPC to reinstate him as a medical doctor in Botswana. Judge Makhwade delivered his judgment on June 12, 2009 and ruled in his favour. The judge also questioned the authority of the council when they decided to deny Dr. Wells the right to practice in Botswana. “The respondent has not provided the source of its authority to ‘suspend’ the registration of the applicant. The respondent has not provided a record of the proceedings where a decision was taken not to renew the applicant’s registration,’’ Judge Makwade said in his ruling.
The judge also lambasted the BHPC for suspending Dr. Wells without affording him a hearing; just like in the Verma case, Judge Makhwade ruled that the Botswana Health Professions Council was a creature of statute. “It is settled law that statutory creatures cannot operate outside of the parameters that have been set out by the statute that created them,’’ he said. The High Court judge also advised the BHPC that if in its discharge of the mandate entrusted upon it is of the view that the act is limiting its scope and hampers the effective discharge of its mandate, the correct procedure is to advocate for the amendment of the law.
Unfortunately for Dr. Wells, his victory was short-lived as he now had to fight another court battle with the Minister of Labour and Home Affairs who had cancelled his residence permit and ancillary work permit. BHPC’s investigations also ended up unearthing information that revealed how Dr. Wells had forged his certificates.
There is yet another case against BHPC which was brought before the court by Dr. Bernadette Dineo Kgarebe, a gynaecologist who practiced in Gaborone. This was after BHPC suspended her registration with the council on October 16, 2006 and called on her to cease all professional practice with immediate effect. It is alleged that the council had suspended Dr. Kgarebe on allegations she was using substances believed to be drugs. On June 22, 2009, the then Lobatse High Court Judge David Newman made an order that declared BHPC’s decision unlawful, null and void. “The suspension of the Applicant (Dr. Kgarebe)’s registration with the Botswana Health Professions Council is uplifted with immediate effect,’’ Newman said in his ruling. Just like in all previous cases, the judge ruled that the BHPC was trying to be a law unto itself. In all these cases, BHPC’s line of defence is that Section 16 of BSPC Act protects them from litigation. The section reads, “Legal proceedings civil or criminal, shall not lie against the Council, or any member thereof in respect of the performance of any act or the exercise of any duty in accordance with the provisions of this Act’’. The courts of law however, have always ruled that this protection is not absolute. All the judges that have presided on BHPC cases have always reminded the council that it is a fundamental principle of our law that statutory bodies may not act ultra vires the powers conferred on them by the statutes under which they are constituted.