Spotlight on malicious complaints to professional regulators

16th April 2018

Spotlight on malicious complaints to professional regulators

Medical, legal and other professionals are not without recourse when facing false or malicious charges laid against them with professional bodies.

This is the lesson that can be drawn from a recent judgment of the Pietermaritzburg High Court, which comes as a warning of the potential consequences for anyone considering laying malicious complaints with the Health Professions Council or indeed any other professional regulator such as the Law Society.

The merits of the case are still to be considered, but it does bring into focus the potential for a practitioner to seek recourse against a malicious complaint once the regulator has dismissed it.

In the case of Holden v Assmang Limited, the plaintiff, a health practitioner, is suing for malicious prosecution.  She claims that the complainant wrongfully and maliciously laid false charges with the Health Professions Council of South Africa (HPCSA).
To succeed with a malicious prosecution claim, one must show that:

  1. the defendant set the law in motion, instigated or instituted the proceedings;
  2. the defendant acted without reasonable and probable cause;
  3. the defendant acted with malice or intent to injure;
  4. the prosecution has failed; and
  5. damages were suffered.  This could take the form of general damages for insult and diminished reputation and even loss of earnings.

For the purposes of prescription, which was the issue that the court had to decide in its recent judgment, the court ruled that the three-year prescription period commenced once the HPCSA had dismissed the complaint, not when the complaint was first delivered. In making this ruling, the court opened the way for the medical practitioner to proceed with her damages claim.
We will be following this case with great interest, but for now, this at least provides a warning that laying an unfounded or malicious complaint is not without risk to the complainant.
What’s more, although this case deals specifically with an HPCSA complaint, it could be pertinent to other professionals too. Members of the public should bear in mind that filing a fabricated complaint motivated by malice or improper intent against a professional with any professional disciplinary body is not without recourse. Indeed, it may lead to a claim for malicious prosecution and damages.

Written by Jay Page, Senior Associate and Lauren Turner, Associate at Bowmans