Dowley v Health Professions Council of South Africa (A75/2023) [2024] ZAGPPHC 305 (28 March 2024)

Dowley v Health Professions Council of South Africa (A75/2023) [2024] ZAGPPHC 305 (28 March 2024)

The Court held that the definition of 'touting' and the relevant Ethical Rules require the offender to be a practicing optometrist with a practice and patients. Since it was common cause that Mr Dowley was registered as a non-practicing optometrist and had no patients, the rules did not apply to him. The Appeal Committee erred in finding him guilty under these provisions, and he should not have faced the charge. The appeal was upheld and the orders of the Appeal Committee were set aside.

Citation
[2024] ZAGPPHC 305
Parties
Appellant: Bryan John Dowley; Respondent: Health Professions Council of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 March 2024
Case Number
A75/2023
Procedural Posture
Civil Appeal / Appeal From Decision of HPCSA Appeal Committee
Outcome
Appeal upheld; orders of the Appeal Committee set aside; appellant found not guilty on Count 1; respondent ordered to pay costs.
Judges
Baqwa, Le Grange
Legal Topics
Health Professions Act, Unprofessional Conduct, Touting, Interpretation of Ethics Rules
Administrative Law Civil Procedure Health Professions Act Unprofessional Conduct Touting Interpretation of Ethics Rules

Case Brief

Summary, issues, holding and outcome

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Parties

Bryan John Dowley

Appellant

Health Professions Council of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of HPCSA Appeal Committee

Legal Issues

  1. 1 Whether a non-practicing optometrist can be found guilty of 'touting' under the Health Professions Act and Ethical Rules.
  2. 2 Whether the definition of 'touting' and the relevant rules apply only to practicing optometrists with patients.
  3. 3 Whether the Appeal Committee erred in finding Mr Dowley guilty on Count 1.

Ratio Decidendi

The Court held that the definition of 'touting' and the relevant Ethical Rules require the offender to be a practicing optometrist with a practice and patients. Since it was common cause that Mr Dowley was registered as a non-practicing optometrist and had no patients, the rules did not apply to him. The Appeal Committee erred in finding him guilty under these provisions, and he should not have faced the charge. The appeal was upheld and the orders of the Appeal Committee were set aside.

Court Disposition

Appeal upheld; orders of the Appeal Committee set aside; appellant found not guilty on Count 1; respondent ordered to pay costs.

Orders

  • The appeal is upheld.
  • The Appeal Committee's first, second, fifth and sixth orders are set aside and replaced with an order that Mr Dawley is found not guilty on Count 1.