Patient safety at risk: Labour Court upholds dismissal of doctor with drug issues

A Hermanus doctor’s dismissal has been declared fair by the Labour Court after it disagreed with the arbitrator’s finding that it was procedurally unfair. 

This comes as it was revealed in the disciplinary records that the doctor had at times used cocaine and in so doing, posed a threat to patients. 

The review application against the arbitrator’s finding was brought to the Labour Court sitting at the Western Cape High Court, by the Western Cape Department of Health.  

The arbitrator found that the dismissal of the doctor on February 29, 2020, was substantively and procedurally unfair and awarded him six months’ remuneration as compensation.

Labour Court judge Robert Lagrange said in his judgment that the doctor’s “misconduct was inherently serious and posed an imminent threat to patients, the liability of the department, and himself”. 

During his disciplinary proceedings, the doctor refused to undergo a test to prove he was not under the influence of an addictive drug and further failed to provide proof of his prescriptions for medication.

Lagrange said: “It is untenable on the evidence of the high risks (the doctor) posed, that the arbitrator could have formed a view that his conduct was less serious than that, and that dismissal was an unfair sanction for the department to impose.”

During arbitration proceedings, the doctor admitted that he was under the influence of an intoxicating substance, but qualified his admission by stating it was his prescription medication. The doctor - who was unrepresented during his internal disciplinary proceedings - submitted that the prescription medication was used for epilepsy and mood disorder. 

The judgment read: “The arbitrator noted that the evidence of all the employer’s witnesses showed that the doctor was using cocaine and that he had never told the chairperson of the inquiry that he had only used it in December 2015.

"The arbitrator concluded that ‘the inference could be drawn that he was most likely intoxicated during the incidents of 2019 based on the observations of the employer's witnesses’ and that it was possibly due to his use of cocaine, these circumstances being that the applicant refused to subject himself to a urine/blood test and his failure to present a medical script for the medication he was taking, nor a medical certificate confirming his illnesses.

“The arbitrator accepted the evidence that the medication Kleynhans allegedly took would not have caused him to behave as if he was intoxicated.”

Concerning the medication the doctor said he was taking, an expert witness testified that on a maintenance dose, the medicine the doctor said he was taking would not cause drowsiness even in combination with another drug. 

A nursing manager, who had also worked with the doctor, testified that on two separate occasions, she had observed that the doctor “was unsteady on his feet and was walking around in a confused state”. 

“On all occasions when she had observed him in this condition, he had a white substance around his mouth and he was unsteady on his feet, his pupils were dilated, and his speech slurred. Three other incidents of this nature occurred and were dealt with by requiring him to sign a leave form and requiring that he went home,” the record read.

The doctor’s submission was that a white substance observed on his lips was a result of chewing peppermints, however, the nursing manager testified that “everyone at the hospital chewed peppermints but that did not result in a white powder residue on their lips”.

Lagrange said: “The arbitrator’s findings on the substantive and procedural fairness of the dismissal are ones that no reasonable arbitrator could have reached and the award must be set aside.”

 chevon.booysen@inl.co.za