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Balancing Employment Law and the Ethical Rules of the HPCSA

Consultant with Elsabe Klinck and Associates



Running a health professions practice means running a business, which is subject to various business and business law requirements. In addition to these requirements, health legislation places additional requirements on health professionals (such as optometrists), unique to health practices and facilities.

Labour Law

Finding the right employees, is one of the most important activities in starting up and running a practice. When interviewing prospective employees, focus should be placed on evaluation whether the applicant would be able to fulfil the actual tasks expected of him/her, and the standard at which it would be expected to fulfil those tasks. For this, there must be clear and properly drafted job descriptions which set out actual tasks, as well as the required competencies of the employee.

The status of the employee should be established right from the beginning of the employment relationship, e.g. whether the employee will be appointed in terms of a permanent (full-time or part-time), fixed term or temporary contract. All employees should have employment contracts, and these contracts should refer to the practice’s employment policies. Key policies include those about leave, confidentiality, grievance procedure, disciplinary code, reimbursement (pay/salaries), performance evaluation, smoking, pay progressing, telephone/IT/communications. These contracts and policies, as well as actions such as appointments and discipline, must be in line with the requirements of the Basic Conditions of Employment Act, 1997 (leave, working hours, overtime, termination of contract), the Labour Relations Act, 1995 (workplace discipline, fair dismissals), Employment Equity Act, 1998 (non-discrimination), etc.

Two very important matters in the employer-employee relationship are discipline and dismissal. With regard to discipline and the ending of the employment contract, most businesses face legal risks when employees are disciplined or dismissed. The Labour Relations Act (“LRA”), in the Code of Good Practice, recognises the right of the employer to maintain discipline in the workplace by establishing rules and standards for the orderly functioning of the business. It is required by labour legislation that these rules must be applied fairly and consistently. The LRA also defines the circumstances in which employees may be dismissed. A dismissal must be for fair reasons (substantive fairness), as well as done in accordance with a fair procedure (procedural fairness). Both the requirements must be complied with.

Ethical Rules of the Health Professions Council of South Africa (HPCSA)

The Health Professions Act,1974 (“HPA”), the Regulations and the Rules promulgated thereunder, govern all work undertaken by professionals registered at the HPCSA. It also governs all acts that fall within the scope of practice of registered professionals. Section 41 of the HPA empowers the Professional Boards established in terms of the HPA, to conduct inquiries into charges of unprofessional conduct.

The Ethical Rules of Conduct for Practitioners registered under the HPA (GNR 717 of 4 August 2006), describe the conduct that constitute professional, or conversely if not adhered to, unprofessional conduct in terms of section 41 of the HPA. Optometrists are under the jurisdiction of the HPCSA and compliance with these Rules are mandatory.

The following Ethical Rules are relevant when HCPs enter into a practice:

Ethical Rule 3: Advertising, canvassing and touting. Advertising of services may not be misleading, use fear to entice patients, give guarantees of service, bring the profession in disrepute or be vague. Touting, in the form of enticement of members of the public to a practice by using items/services that fall outside the scope of practice as incentives, is prohibited. Canvassing, consisting of enticement of the public on the basic attributes and/or qualities of a practice, is also prohibited.

Ethical Rule 5: Naming of a practice: A HCP in a practice, should be identifiable by the public. This Rule makes it clear that a HCP can only practice in his/her own name, or in the name of other registered persons with whom he/she is in practice. The HCP thus cannot practice in the name, or under the name, of any other entity other than his/her own.

Ethical Rule 7: Fees and commission: This Rule prohibits fee-sharing with any person who did not render a commensurate part of the clinical service. It is required of HCPs to only bill for services personally rendered, or for the services of the persons they are lawfully allowed to employ.
HCPs should be conscious of the cost-effectiveness of treatment and should fully inform patients of the treatment options available to them.

Ethical Rule 8: Partnership and juristic persons: The effect of this Rule is that no corporate entities, e.g. hospitals, rehabilitation centres, etc. may own practices of HCPs. Ownership entails that ultimate responsibility for everything that happens in the business/practice of the HCP, is taken by the HCP. The HCP is also responsible for his/her own liaisons with medical schemes. The HPCSA Policy Document on Business Practices states that the only acceptable business models for HCPs are solo practice, partnerships, associations, personal liability companies (i.e. incorporated companies) and franchises (subject to compliance with the HPCSA Rules).

8. Partnership and juristic persons.—(1) A practitioner may practise in partnership or association with or employ only a practitioner who is registered under the Act and who is not prohibited under any of the annexures to these rules or any ethical rulings from entering into such partnership or association or being so employed: Provided that, in the case of employment, the practitioner so employed either provides a supportive health care service to complete or supplement the employing practitioner’s healthcare or treatment intervention or is in the same professional category as the employing practitioner.

[Sub-r. (1) substituted by r. 4 of GNR.68 of 2 February 2009.]

(2) A practitioner shall practise in or as a juristic person who is exempted from registration in terms of section 54A of the Act only if such juristic person complies with the conditions of such exemption.

(3) A practitioner shall practise in a partnership, association or as a juristic person only within the scope of the profession in respect of which he or she is registered under the Act.
An optometrist cannot form a partnership or be employed by someone with a lesser scope of practice, for example a dispensing optician.

(4) A practitioner shall not practise in any other form of practice which has inherent requirements or conditions that violate or potentially may violate one or more of these rules or an annexure to these rules.

Ethical Rule 8A: Sharing of rooms: The sharing of rooms with unregistered entities, is prohibited by this Rule. Rooms are defined as “a physical structure, with an exclusive entrance and walled around for the privacy of patients, the presentation of their confidentiality and the safe keeping of records, where a practitioner conducts his/her practice.” This has been interpreted to mean a totally physical, separated structure with its own entrance.

Ethical Rule 13: Professional confidentiality: Sharing of any health information (without prior written consent), with a third party is strictly prohibited by the HPCSA and also by other legislation such as the National Health Act, 2003, the Constitution of South Africa, 1996 and the Children’s Act, 2005. The Protection of Personal Information Act, 2013 (“POPI”) is not in full force yet, but is also applicable here. POPI applies to the “processing” of all personal information of all individuals. The Optometrist, as the person in possession of a patient’s health information, is responsible for how that information is used and ensuring the confidentiality thereof.

Ethical Rule 21: Performance of professional acts: All professionals are required to ensure that all professional acts to be done under proper conditions and in appropriate surroundings.

Ethical Rule 27A: Main responsibilities of health practitioners: This Rule requires, amongst others, that the HCP must “maintain proper and effective communication with his or her patients and other professionals”. The HPCSA Booklet on Informed Consent contains paragraphs on “providing sufficient information”, “responding to questions”, “withholding information”, and “presenting information to patients.”

This Rule also states that HCPs must at all times act in the best interest of the patient and respect patient confidentiality, choices and dignity. To act in the best interest of the patient also includes that no third party may interfere with the clinical independence of the HCP or make assessments as to the appropriateness of the acts of the HCP.


Running HCP – practices requires knowing what to do by knowing the basics of applicable legislation. Failure to comply with legislation could have an impact on the finances of the practice, as penalties may apply, requiring costly interventions and legal fees.