BALANCING ACT: WHEN THE RIGHTS OF PATIENTS OUTWEIGH THE MISCONDUCT OF A DOCTOR

Introduction

On 4 March 2025, an application was brought before the Western Cape High Court, by various patients of an oncologist, to invalidate the hospital’s (the oncologist’s former employer) decision to terminate the oncologist’s practicing privileges, due to the oncologist’s alleged conduct towards the hospital’s employees. According to the patients, the hospital’s decision not only infringed upon their right of access to healthcare, but also that of future and prospective patients.

Background

The oncologist in this matter, Doctor Louis Kathan (“Dr Kathan”), has been described as one of the most innovative and forward-thinking oncologists in South Africa. He has an impressive résumé, spanning more than 18 years specialising in stereotactic radiotherapy. In particular, Dr Kathan is extremely experienced in operating a very specialised and unique cancer treatment machine which permits non-invasive radiotherapy technology that can adapt to a patient’s treatment plan based on their type of cancer. The hospital that Dr Kathan was practicing out of was the only hospital in Sub-Saharan Africa with an Ethos™ Machine and due to his expertise in utilising such equipment, many patients sought Dr Kathan’s services to receive robust cancer treatment.

Unfortunately, Dr Kathan’s conduct at the hospital was controversial to say the least. Dr Kathan was alleged to have made homophobic, racist and sexist remarks whilst at the hospital. Additionally, two employees resigned, citing that Dr Kathan had made their working conditions intolerable. The hospital held a disciplinary hearing whereby Dr Kathan was found guilty of unfair discrimination, harassment, sexual harassment, bullying and creating a hostile work environment. Consequently, the hospital terminated the oncologist’s employment contract, however, he continued to practise as an oncologist at the hospital.

Even though he was no longer an employee, Dr Kathan was still able to carry on his oncology practice as his practising privileges at the hospital had not been suspended. Naturally, Dr Kathan’s alleged conduct also necessitated the need for the hospital to assess whether he should still be allowed to have his admission rights and practising privileges at the hospital. After a lengthy process, the hospital opted to terminate Dr Kathan’s practising privileges at the hospital however the enforcement of this decision did not occur immediately. As a result of the hospital’s decision, many patients who were receiving treatment by Dr Kathan became at risk of becoming prejudiced by not being able to be assisted by one of the most experienced oncologists in the country. Once the hospital enforced the suspension, 17 of his patients brought an application to the High Court to overturn the hospital’s decision to terminate Dr Kathan’s privileges and reinstate him, in order for him to continue to providing treatment to his patients.

Legal Considerations

In their defence of the termination, the hospital contended that its decision stemmed from a contractual nexus between itself and Dr Kathan, and the utilisation of its policies in terminating Dr Kathan’s practicing privileges at the hospital emanated through the contractual relationship between the parties. On the other hand, the applicants in the matter contested that such actions were impermissible and amounted to administrative action. It should be noted that the Presiding Judge summarised the definition of administrative action as defined in the Promotion of Administrative Justice Act No 3 of 2000 as having the following features: 

a)    “Any decision taken or a failure to decide by an organ of state when exercising a power (or exercising a public power) or performing a public function in terms of any legislation, and/or

b)   Any decision taken by a natural or juristic person, other than an organ of the state, when exercising a public power or performing a public function in terms of an empowering provision which adversely affects the rights of any person and which has a direct, external, legal effect.”

In his Judgment, Wille J held that “it is insufficient to merely explore the nature of the relationship between the parties in isolation, contractual or otherwise. Instead, regard must also be given to the consequences of the decision.” The commercial operations of hospitals differ from that of an ordinary commercial enterprise. This is due to the fact that the services which hospitals provide, are directly associated with the Constitutional right of access to healthcare, and decisions which involve removing specialised doctors from the facility would have a direct impact on patients being treated by said doctors.  

According to the hospital's Management Policy, unless unacceptable conduct by a practitioner of the hospital poses an imminent danger to the health of individuals or constitutes a serious offence, the offending party may be required to go through a rehabilitation programme in order to prevent any reoccurrence from arising. Peculiarly, the hospital had a “Privileges Policy” which allowed for the suspension of a practitioner’s practising privileges if their conduct posed a threat to the health of individuals or if the conduct constituted a serious offence under the Management Policy. As a result, it became apparent that there were actually two governing policies which overlapped in procedure and had to both be considered.

To justify its decision, the hospital relied on its Privileges Policy as the guiding procedure when suspending Dr Kathan’s practising privileges and due to the seriousness of his conduct, the hospital was of the view that the suspension of Dr Kathan’s practising privileges was justified. Despite this, the suspension of Dr Kathan did not become effective until a number months after the decision to suspend was made.

Outcome

Wille J held that although the remarks made by Dr Kathan were unacceptable and offensive, he was of the view that Dr Kathan’s conduct would be able to be remedied through rehabilitation, instead of the suspension of his practising privileges. Through his justification, Wille J stated that a severe sanction should not be imposed in the event that a less severe sanction would achieve the same purpose. Additionally, even though the decision to suspend Dr Kathan’s practising privileges was contractually between himself and the hospital, the effect of the decision has an adverse impact on Dr Kathan’s patients and their constitutional rights. Through his justification Wille J stated: 

“The decision had profound consequences for the applicants, and because of these consequences, they have a direct and substantial interest in whether the termination decision was taken lawfully”

As a result, it was held that the decision to terminate Dr Kathan’s admission and practising privileges at the hospital was inconsistent with the Constitution and therefore invalid. Accordingly, Willie J ordered that the decision of the hospital be set aside and that Dr Kathan be allowed to resume his practice at the hospital.

Conclusion

This case highlights a very complicated balancing act between the contractual decisions of parties versus the potential impact on the public that the decision may have. It is common for companies or employers to have a very strict approach towards conduct concerning racism, sexism, discrimination or the like, however, the impact of the decision taken by the company, is not often considered in the public sense, as a serious sanction for such misconduct is largely accepted as justified.

When considering how the decision may adversely impact interested parties, such as patients, the justification for upholding such a strict approach becomes contested. This case raises an interesting moral debate, of whether the reprehensible conduct of an individual may be overlooked in favour of the value of the services such an individual provides.

It should be noted that the hospital has reportedly sought to appeal the Judgment. Due to the uniqueness of the facts and the constitutional aspects arising therein, the matter will likely go under further review before a final ruling will be made.

Written by Gregory Barnett

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