The Law Society of South Africa has come out in defence of the legal profession, saying Health Minister Aaron Motsoaledi’s “reckless” and “misinformed” remarks relating to medico-legal claims painted the entire profession with the same brush in the eyes of the public.
Speaking during a media briefing at the weekend about the ongoing investigations by the Special Investigating Unit (SIU) into medico-legal claims lodged against the Department of Health, Motsoaledi said they found lawyers who submitted fraudulent claims, embezzlement of trust funds, tricked people into signing power of attorney to sue and collusion between attorneys, touts, nurses and doctors in both public and private health care, as well the Office of the State Attorney.
The department paid R3 039 951 634 towards medico-legal claims over the period 2015/16 to 2020/21.
The SIU finalised its investigations regarding 23 letters of demand where lawyers were demanding R298 million, with most of it found to be fraudulent.
Law Society of South Africa representative Chicco Tshikonelo Ramovha said the department was within its rights to single out someone who it found wanting because it has proof of that.
“But proof and conviction are different things. And those malicious allegations of all lawyers are totally wrong, by using the term lawyers it’s including everybody. Even telling us to withdraw those cases (to avoid consequences), that’s a threat, it’s undemocratic in fact.
“The lawyers are going to be telling clients they don’t want to take these cases because we don’t want to be victimised because that whole briefing was about what the SIU will do.
“But what if somebody does an operation where they leave a pair of scissors in someone’s stomach and you don’t expect to be sued?
“When they do something which is wrong, it is a lawyer’s duty to protect the rights of the citizen, we took an oath.
“That’s why you will find half the time we assist people on a contingency basis, meaning when you are successful, we will take the contingent.”
He said the profession was one with very good decorum.
“You have an insurance where if a lawyer does something, you can claim against their indemnity, the lawyer can be punished and struck off the roll. The Legal Practice Council (LPC) is very effective in dealing with its members.
“He (the minister) was talking about some lawyers working without a fidelity certificate, who was he referring to?
“We must do our audit every August and submit our books to the LPC then they issue the certificate to say everything is in order. (That) the whole law spectrum, we must all be bundled together, that is not right. I was very much disappointed.”
He said even if they wanted to sue, they first needed to issue the department with a letter of demand, to give it six months to investigate. The LPC said that it was waiting to be furnished with all the details to commence with the necessary investigations relating to some of the matters Motsoaledi referred to.
“The LPC has noted the comments by Health Minister, Dr Aaron Motsoaledi, and we also reached out to the SIU requesting that the LPC be furnished with all the details, for the LPC to commence with the necessary investigations.
“Any case of misappropriation of client funds is a serious matter and the LPC normally approaches courts to get the legal practitioner(s) to be suspended or struck off,” said LPC spokesperson Kabelo Letebele.
He said on average they received in excess of 14 000 complaints per year.
“The average time to deal with a complaint is 3-6 months. The period becomes longer when we have to refer a matter to court, as that process is determined by the courts.
“The LPC would like to put it on record that there are not many lawyers who act in an unethical manner.
“In fact, out of the 42 000 legal practitioners, we deal with complaints for less than 2% of legal practitioners.
“However, any complaints are treated with the seriousness they deserve and we always do what we can to remove any legal practitioners who betray public trust from practising as legal practitioners,” said Letebele.
Meanwhile, Motsoaledi confirmed on Monday that they were exploring introducing a Scandinavian system as part of curbing fraudulent medico-legal claims in the country.
“We want to change the legal process where a lawyer represents a claimant because we believe that as long as there is an incentive to lawyers, we will have more cases of fraudulent claims.
“I can give an example of what is happening in Scandinavian countries, where instead of a shootout in court between lawyers, they put up a tribunal that consists of retired judges, retired nurses and advocates.”
Motsoaledi used the Road Accident Fund as an example and said a tribunal would decide on fair compensation, whereas lawyers benefit from the current system.
Professor Alex van den Heever from the University of the
Witwatersrand said it was good that the department was trying to implement strategies to fight corruption.
“Corruption in the department is rife and we saw it in the previous administration. If the tribunal method will help to fight corruption, then more details must be shared,” he said.
Dr Imran Keeka, DA spokesperson on health, said it is no surprise that KZN ranks among the provinces with the highest medico-legal claim contingent liability in the country.
“The reality is that we have a broken healthcare system and scape-goating unscrupulous legal practitioners and staff is cringe worthy.
“There are not enough ambulances, staff or medicines, resulting in delays in getting to patients and not providing the correct treatment certainly worsens people’s health while waiting.
“Not having proper record keeping in place, lost files, illegible writing and of course people who make money from selling files to crooked legal practitioners, are all truths that form slices of the same pie,” said Keeka.
Health portfolio committee chairperson Dr Sibongiseni Dhlomo said if those records were kept electronically, there would be a significant reduction in fraudulent claims, especially when coupled with fire drills. He said that fire drills were a mock exercise as if the situation was happening for real, preparing healthcare professionals to be ready when the situation happens for real.
Dhlomo said the legal ramifications of the SIU’s findings cannot be overstated.
“The referral of implicated attorneys and healthcare professionals to the National Prosecuting Authority (NPA) for criminal charges signifies a robust response to corruption and fraud within our system. It sends a clear message that unethical behaviour will not be tolerated and that those who exploit our healthcare system for personal gain will face the full force of the law. This is a pivotal moment for our legal system, as it reaffirms our commitment to justice and accountability.”
Cape Times