By its very nature, Psychology, as a profession, cannot easily be defined within distinct parameters, as pointed out by the United States Court of Appeals:
"The very reason psychology has not been regulated before is that it has been and remains an amorphous, inexact and even mysterious discipline."
Therefore, it is without surprise that in recent litigation initiated by the Recognition of Life Long Learning in Psychology Action Group ("RELPAG") and the Justice Alliance of South Africa ("JASA") against inter alia the Health Professions Council of South Africa ("HPCSA") and the Minister of Health ("the Minister"), the amendment to the Regulations Defining the Scope of the Profession of Psychology (“the Regulations”) came under scrutiny by a large body of the psychologists it sought to regulate.
The reason for the litigation stemmed from the frustration shared by many psychologists about the discriminatory application of the Regulations which:
- unfairly limited a large body of psychologists in their ability to provide psychological services within their fields of competence (developed through their training and experience) even though they were not necessarily registered to practise in those fields;
- was used by many Medical Aid Schemes as a basis for refusing payment to psychologists who had rendered their services to patients outside their registered scope of practice; and
- was used by the HPCSA as a basis for both initiating investigations and disciplinary action against certain psychologists for acting outside their registered scope of practice.
RELPAG and JASA launched a two-fold application in the Western Cape High Court. The first part of the application sought a declaratory order enabling registered psychologists to practise in all areas of their profession within the bounds of their competence, based on their formal education, training and experience. The central argument advanced by RELPAG and JASA, as supported by various authorities, was that, on a proper reading of the statutory framework, this was permissible.
The second part of the application sought to review and set aside the Minister's decision to promulgate the 2011 amendment to the Regulations (which defined the scope of practice of psychologists). Most notably, the argument advanced by RELPAG and JASA included grounds of vagueness, irregular promulgation, and the failure by the Minister to take relevant considerations into account, such as the overlap in the training of psychologists, the adverse impact on existing practices and the potential for abuse by Medical Aid Schemes.
The application was set to be heard last week but was belatedly settled between the parties. Even though the application was opposed on substantive grounds, it appears that, ultimately, the Minister had recognised that his decision to promulgate the amendment had not followed due process and was therefore subject to review.
That circumstance, coupled with others, seemed to have culminated in a Court Order being granted by the Western Cape High Court, by agreement between the parties, in terms of which the Regulations were declared invalid and the Minister's decision to promulgate the Regulations was remitted for reconsideration. The declaration of invalidity, however, was suspended for a period of 24 months to allow for public participation on this issue. We are informed that this process has now begun.
From the perspective of many psychologists, the effect of the invalidity – albeit suspended for now - means that:
- any pending disciplinary proceedings relating to this issue are postponed until the promulgation of new regulations and naturally the uncertainty will leave those awaiting a finding by the HPCSA in an uncomfortable position;
- since a copy of the Court Order was served on the Council for Medical Schemes, many of the Medical Aid Schemes might now be inclined to pay for services rendered by psychologists in circumstances where they would previously have refused such payment; and
- the uncertainty which will continue to exist for the next 24 months in relation to the scope of practice could potentially serve to further limit an already small pool of specialist psychologists available to the public, which is in dire need of their expertise.