‘Covid-19’ doctor in bid to get charges of ‘unprofessional conduct’ dropped

A KWAZULU-NATAL general-practitioner accused of unprofessional conduct during the Covid-19 pandemic, following his “remarks” during a webinar on the virus, continues in his bid to have the charge against him revised or dismissed.

Dr Shankara Chetty, of Port Edward, was charged with unprofessional conduct, for allegedly contravening the Health Professional Council South Africa’s (HPCSA) Ethical Rules and Guidelines of Conduct for Practitioners.

Willem Daniel Francois Venter, a medical professor, lodged the complaint against Chetty with the HPCSA.

According to the charge sheet, it is alleged that Chetty contravened ethical rules, such as Rule 19, subsection b, which requires health care practitioners to only use health technologies, which have been proven on investigation to be capable of fulfilling the claims made in regard to it.

He is further accused of contravening Rule 27, A subsection a, which indicates that health practitioners should act in the best interests of patients, including the advice they give on public platforms.

He is also accused of contravening Rule 12. According to the charge sheet, it read, “a practitioner shall not cost reflections on the probability of other healthcare practitioners in line with that”.

He is also accused of making aspersions related to the cause of Covid-19, the treatment thereof and the prevention of severe illness in patients with this disease.

At the start of the inquiry last week, Chetty appeared before the HPCSA Medical and Dental Professions Board – Professional Conduct Committee, who ruled that the charge be revised within 15 days.

This followed Chetty’s legal team, instructing attorney Athol Gordon and advocate Andrew Brown, making submissions to the committee on the objections to the charge.

Brown, in his arguments, said the charge arises from the complaint of a professor and relates to an 11-minute video clip – “embedded video” in an article, which records Chetty’s participation in a webinar.

He said the video was an expression of Chetty’s opinions on certain aspects of the origin, cause and treatment of Covid-19, arising from a webinar debate on the pandemic.

Brown said the allegations of him contravening the ethical rules, extended outside of the ambit of the expression of opinions – specifically in a video.

“In doing so, they (HPCSA) impermissibly seek to widen the scope of the overall charges – this is both procedurally and substantively prejudicial and unfair.

“Charge one, relies upon Rule 19, which provides that a practitioner shall in the course or scope of his practice, ‘use only an apparatus or health technology which proves to be capable of fulfilling the claims in regard to it’.

“For the purpose of this objection, we raise the fact that there was no doctor-patient relationship. Expressing an opinion as to what is a preferable health technology cannot offend against the rule or equate at any level, to the use of that technology.”

Borne said they further objected to the charge that Chetty had breached Rule 27.

“The Pro-Forma Complainant (HPCSA) seeks to add to the charge, saying that the rule also requires a practitioner to act in the interest of his patients when giving advice on public platforms. This aspect does not appear in the rule and he has effectively added to the rule, information which does not exist.

“We say that is not permissible as the rules are published regulations that cannot simply be edited in order to pursue a charge that would otherwise not be competent. There is no suggestion that the respondent was ‘giving advice’ to patients while participating in a webinar. The respondent was not addressing a forum of patients,” he said.

Brown said the charge of contravening Rule 11, was “unintelligible”.

“The respondent has, through requests for further particulars, attempted to clarify the charge, but remains impossible to comprehend, and at the very least, is impermissibly vague.

“Upon clarification, it was determined, it should read, ‘a practitioner shall not cast reflections on the probity of other health-care practitioners in line with that …’

“The respondent is not charged with making improper suggestions in relation to any colleagues or identified registered practitioners. He is accused of criticising the Department of Health, its entities, and other public organisations. These are the only identified targets of the respondents’ criticism, none of which are persons.

“Those in public office are expected to accept ‘robust criticism and freedom of expression’ from the public. The attempt to protect the Department of Health and other public organisations from criticism by relying on Rule 12, improper and irregular. This is not what the rule seeks to achieve,” he said.

Brown argued that there was no rule which precluded Chetty from making “aspersions” about the cause or treatment of an illness.

“Indeed it is not possible to cast an aspersion as the cause of an illness – the proposition as a matter of logic cannot be sustained. However, nowhere do the rules preclude one from raising an opinion as to the cause of a particular illness. Covid itself is nowhere mentioned in the guidelines,” he said.

Brown said Chetty had a fundamental and constitutionally protected right to freedom of expression – citing various Constitutional and Supreme Court rulings.

“On each occasion, when the respondent expressed himself, he preceded his remark by stating, ‘in my opinion or it is my opinion’. His remarks are plainly an expression of his opinions and are conveyed in the form of debate or interview,” he said.

Viceroy Maoka, the HPCSA’s Pro-Forma Complainant (prosecutor), said there was no question at all that there is a doctor-patient relationship in the allegations contained in the charge sheet.

“This is identified and stated in the letter of complaint and in the videos referred to in the letter of complaint. It should be common cause that in a doctor-patient relationship, there is a relationship of trust and that the patient is vulnerable to the advice given by his doctor.

“However, when the doctor goes outside the medical sphere, and gives advice or provide an unsubstantiated opinion on other matters that does not necessarily deal with medical treatment for the profession for which he is registered with HPCSA to practise or not fully trained or is a specialist in the subject matter within which he provides advice or publicly express opinion, the vulnerability of the patient remains,” he said.

Moaka said it is specifically alleged that Chetty made pronouncement about treatment of Coronavirus, as well as the treatment which he provided to his patients and conducted research was contrary to the provisions of the National Health Act, 2003, the National Health Guidelines on Coronavirus/Covid-19, and the HPCSA’s Ethical Rules and Guidelines.

“Although it is contended on behalf of respondent that on the face of charge, it may correspond with his right to freedom of expression, this is not necessarily the case. It may well be that due to the consent of the patients to involve themselves in these treatments that Dr Chetty may not be guilty of contravention of ethical rules or contravention of National Guidelines, but (he) still misused his position as a doctor to influence the patients to provide them with treatment that is not authorised by the Department of Health, National Health Act, and HPCSA’s Ethical Rules and Guidelines,” he said.

Moaka said although some of the allegations are not subject to the rules’ specifying acts and omissions, the HPCSA may take disciplinary steps against such a doctor for such acts.

“Section 41(1) of the Health Professions Act 56 of 1974, confers powers on the Professional Boards of Council to ‘institute an inquiry into any complaint, charge or allegation of unprofessional conduct against any person registered under the Act’. The only issue to be decided on was whether the conduct complained about would constitute unprofessional conduct,” he said.

Moaka said Chetty’s case is that by virtue of expressing his opinion in a webinar, he is not subject to the jurisdiction of the HPCSA.

“The rights affected are said to be his right to freedom of expression. It is his assertion that on each occasion when he conducted the webinar and expressed himself, he preceded his remark by stating, ‘in my opinion or it is my opinion that …’. The respondent also asserts that the finding of the preliminary committee of inquiry infringed his constitutional right. Limitations on freedom of expression are very narrowly interpreted and are restrictively applied.

“Furthermore, on the basis that pro-forma complainant had conceded in his further particulars that respondent’s right to freedom of expression includes his right to engage fully in debates on health matters, subject to the laws of defamation, hate speech and copyright,” he said.

Moaka said Chetty had no right, let alone a prima facie right, to avoid the jurisdiction of the HPCSA in circumstances where he has maintained his registration with the council.

“The position would have been different if he had de-registered as he is entitled to do. Therefore, the applicant will have the opportunity to raise whatever challenges he wishes to at the inquiry, and each will be considered on its merits.

“The finding of the preliminary committee of inquiry is neither binding upon nor does it in any way affect the rights of the applicant. In the present matter there is simply no apprehension of irreparable harm, well-grounded or otherwise,” he said.

He said the HPCSA is enjoined by the Health Professions Act to investigate complaints.

“Delaying the matter unnecessarily pending a review, does not serve the interests of any of the parties.”

Advocate JM Mogotsi, the committee chairperson, said the committee carefully viewed and analysed the “embedded video” to determine whether or not the charges fall squarely within its parameters and are in line with the points of inquiry.

“In our view the charges are in line with the points of inquiry from the preliminary committee of inquiry. However, there are issues with the charge,” he said.

Mogotsi said the committee found that the charge fell short of the requirements envisaged in section 35(3)(a) of the Constitution, which provides that every accused person has a right to a fair trial, which included the right to be informed of the charge with sufficient detail to answer.

He said the committee found the charge was also not in line with section 84(1) of the Criminal procedure Act – which states that “a charge shall set forth the relevant offence in a such manner and with particulars including the time and place in which the offence was alleged to have been committed and against the person, if any”.

“While the complaint is clear, and that it is based on the embedded video, there is no mention of such in the introductory portion of the charge. We are of the view that the interest of justice requires that the charge be revised. The pro-forma complainant is directed to revise the charge,” he said.

According to the revised charge sheet, which contains four counts of unprofessional conduct, Chetty is alleged to have acted in a manner not in accordance with the norms and standard of his profession as he used unproven and unrecommended technologies, namely his “8th day protocol”.

He is further accused of not acting in the best interest of his patients by prescribing Ivermectin, Corticosteroids and Hydroxychloroquine for Covid, which were not approved by the South African Health Products Regulatory Council or recommended by the Department of Health’s management guideline.

According to the charge sheet, Chetty is also accused of casting reflections on the probity of other health-care practitioners by stating that they “engineered protocols in hospitals to cause death and damage” to Covid-19 patients.

He is further alleged to have “mischaracterised” the cause and identification of Covid illness, spike proteins, the toxicity of the vaccine, and the treatment and management of severe illness in patients with the disease, that are not in line with the tenets of science.

Chetty’s legal team requested an adjournment to review the revised charge sheet.

The inquiry was adjourned to August.

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