Legal and Regulatory Affairs

Overview

Council established the Inspectorate Office in 2014, as a Law Enforcement and Compliance Unit to ensure compliance with the Health Professions Act (Act 56 of 1974), Rules and Regulations. The mandate of the office is to enforce compliance through conducting inspections of registered practitioners and investigation of illegal practices by unregistered persons. The inspectors appointed at the office conduct inspections at the practices of the registered practitioners, including those who are suspended or removed from the registers to ensure compliance with sanctions imposed by professional misconduct committees and that they do not practice while under suspension or erased.

The office works closely with other law enforcement agencies to protect the public against illegal practice by unregistered persons (bogus practitioners), for an integrated approach in the investigation and prosecution of illegal practice

Responsibilities of The Inspectorate Office

Investigate the allegations of non-compliance with the Act, the Regulations and Rules;
Conduct inspections of premises/practices to ensure compliance;
Where necessary, search and seize any articles referred to in section 41A;
Ensure Compliance with penalties imposed by the Professional Conduct Committees as well as suspensions pending inquiries imposed by the Boards;
Develop and maintain an effective and efficient system of fines/revenue collection;
Assist the Professional Boards with their inspections on clinical and professional compliance matters
Attend to criminal matters in respect of unregistered persons
Develop a system of intelligence gathering in liaison with the SAPS to identify unregistered persons, including obtaining in liaison with the SAPS and NPA an authority to embark on entrapment operations
In liaison with the SAPS and the NPA, investigate, arrest and prosecute unregistered practitioners;
Develop and implement a crime prevention strategy

How to Report an Unregistered Person Practicing

The office receives complaints regarding illegal practices by unregistered persons from registered health practitioners, members of the public, including those who want to remain anonymous as long as the details of the persons practising, and address are provided. However, where the whistleblower does not provide their contact details this means we are unable to go back to them for further information, which can make investigating the concerns raised difficult.

On receipt of the complaint, a file is opened, and acknowledgement of receipt letter will be sent to the complainant indicating the reference number of the case and the details of the Inspector who will be investigating the case. The complainant will be given an update and feedback regarding the progress of the investigation.

We will need the following information to consider the concerns raised:

the individual’s name and work address
an explanation of the concerns – with dates when the incidents happened
copies of any supporting documents, the names and addresses of anyone else who witnessed or was involved in the incidents.

Regional Offices

The office has 11 inspectors including the Head of the Division and four regional offices in Pretoria, Durban, Cape Town, and East London.

Gauteng

Senior Manager: Mr. Eric Mphaphuli

Cell: 0609972857

Secretary: Mr. Vincent Skosana

012 338 3984

Inspector: Mr. Masilo Twala

Cell: 064 759 8750

Inspector: Mrs. Tanya Lindeque

Cell: 076 820 2830

6th Floor

Nedbank Plaza Building

361 Steve Biko Street

Arcadia

KwaZulu Natal

Inspector: Mrs. M. Julius

Administrator: Ms. Busisiwe Nguse

The Business Centre

2 Ncondo Place

Ridge Side

Umhlanga Ridge

Postnet Suite 47

4320

Tel: 031 830 5293/94

Cell: 063 694 1092 (M. Julius)

Eastern Cape

Inspector: Ms. M. Mamabolo

Administrator: Mrs. Hayley Smith

Regus Business Centre

Office No: 29 & 31

No: 14 Stewart Street

Berea

East London, 5241

Tel: 043 783 9734

Cell: 063 685 4726 (Ms. M. Mamabolo)

Western Cape

Inspector: Mr. N. V. Vilakazi

Administrator: MR. A. Botile

Century City Business Centre

No 1 Bridgeway Road

Bridgeway Precint, Century

7411

Tel: 021 830 5921

Cell: 076 8220583

Mpumalanga

Deputy Inspector: Ms. Keabetswe Mokwena

Tel: 012 338 3914

Cell: 072 523 1774

Limpopo

Deputy Inspector: Ms. Mphai Mashala

Tel: 012 338 3978

Cell: 076 631 5074

Free State

Deputy Inspector: Ms. Onicca Kekana

Tel: 012 338 3976

Cell: 081 243 9524

Northern Cape

Deputy Inspector: Ms. Nomathemba Kraai

Tel: 012 338 3968

Cell: 076 396 1408

North West

Deputy Inspector: Mr. Joseph Rafedile

Tel: 012 338 3994

Cell: 066 268 3699

NB: The Health Professions Council of South Africa is also in the process of amending the Act and promulgating regulations to make provisions for the Licensing of practitioners and practices. Once this is in place, it will be the responsibility of the Inspectorate to ensure that practitioners practice their professions in accordance with the licensing requirements. This concept is also supported by both the Council’s Ethics committee as well as the Professional Conduct Review Committee.

Overview

Council’s objects includes those of upholding and maintaining professional standards within the health professions and ensure the investigation of complaints concerning persons registered in terms of the Health Professions Act and to ensure that appropriate disciplinary action is taken against such persons in accordance with the Act in order to protect the interest of the public.

The professional boards have been empowered by the Act to institute an inquiry into any complaint, charge or allegation of unprofessional conduct against any person registered under the Act, and, on finding such a person guilty of such a conduct, to impose any of the penalties prescribed in section 42(1) of the Act.

Unprofessional conduct which does not warrant the holding of a formal professional conduct inquiry (minor transgression) is referred for an alternative dispute resolution process by the Ombudsman who mediates on such minor transgressions.

Complaints Process

Lodging of a Complaint

A complaint must be lodged in writing and should be addressed to the Registrar using the following available modes:

Online services
Completing the complaint form and email to legalmed@hpcsa.co.za or courier/hand deliver to 553 Madiba Street, Arcadia, PRETORIA, 0001 OR Post to: P O Box 205, Pretoria, 001

Perusal, Analysis and Categorization of a Complaint

All complaints received are perused, analyzed and categorized according to their significance and seriousness. Complaints not falling under the jurisdiction of the HPCSA are referred to the relevant authorities. These includes complaints against hospitals, medical schemes or other health professionals not registered under the Health Professions Act.

Complaints of minor transgressions are referred to the Ombudsman for mediation whereas complaints categorized as serious are referred for preliminary investigation.

Mediation by Ombudsman

After receiving a complaint for mediation, the Ombudsman may call for further information in any manner he deems appropriate from any person who, in his opinion, may assist in the mediation to resolve the matter and this may include requesting a practitioner to respond to the complaint. After receiving the information referred to above, the ombudsman considers the matter and mediate between the parties with a view of making a determination to resolve the matter between the parties.

After making the determination, the Ombudsman advises the parties of his determination on the matter and require them to indicate whether or not they will abide by the determination. If the parties agree to abide by the determination, the ombudsman confirms the determination in writing and the determination becomes binding on both parties as a final resolution of the matter. If either party does not agree to abide by the determination, the matter is referred to the registrar for preliminary investigation.

The information obtained by the ombudsman during mediation is confidential and privileged and, if a matter is referred for preliminary investigation, such information may not be considered by the preliminary committee of inquiry.

Preliminary Investigation

All matters of a serious nature are referred for preliminary investigation. The process of preliminary investigation involves obtaining information from any person including the written response from the person against whom the complaint is lodged who is given fourty (40) days to respond to the complaint.

The complaint, information obtained and the written response (if available) are considered by the preliminary committee of inquiry which may either:

Instruct the respondent who have not submitted a written response to appear before the committee in person, with or without a legal representative to explain to the committee why he/she failed to respond to the complaint or exercise his/her right to remain silent. The respondent may be found guilty of contempt of council if the committee does not accept the reasons given or if the respondent fails to appear before the committee
Note and accept the explanation given by the respondent, in which case, the respondent is discharged, and the complainant can only appeal such a decision of the committee at the High Court.
Decide that there are grounds for an inquiry to be held into the matter with or without an option to pay an admission of guilty fine, in which case, the matter is referred for inquiry.

Decide that there is prima facie evidence of unprofessional conduct, but that does not require an inquiry, in which case, the committee imposes a penalty of either a caution, reprimand or a fine.

Professional Conduct Inquiry

A professional conduct inquiry process is a lengthy process at it is quasi-judicial in nature. At an inquiry, a practitioner may not be found guilty of unprofessional conduct, in which case the practitioner is discharged, but ter pro-forma complainant may appeal the decision of the committee to the Appeals Committee of Council OR the practitioner may be found guilty, in which case, the committee imposes any of the penalties in section 42(1) of the Act.

Hospital Complaint

Is your complaint related to a hospital?

Any person may lodge a complaint with the Office of Health Standards Compliance (OHSC) for breach of any norms or standards by both public and private health establishments.

OHSC Call Centre: 080 911 6472

Email: complaints@ohsc.org.za

Fax: 086 560 4157

Other Healthcare Practitioners

Is your complaint related to a nurse?

If you feel that a nurse acted negligently or unethically, individual nurses can be reported to the South African Nursing Council (SANC) to investigate the complaint.

Is your complaint related to an alternative healthcare practitioner (natural healers, homeopath etc).

If you feel that an alternative healthcare practitioner acted negligently or unethically, report to the Allied Health Professions Council of South Africa (AHPCSA)to investigate the complaint.

Meet the HPCSA Ombudsman

Dr Munyadziwa Albert Kwinda is the Ombudsman at the Health Professions Council of South Africa, a post he has occupied since March 2014.

Before joining the HPCSA as Ombudsman, Dr Kwinda was a Medical Specialist (Family Physician) working for the Department of Health at Tshilidzini Hospital in Venda, the same hospital where he did his internship in 2002. At the same time, he was also seconded by the MEC Of Health to manage the National Health Insurance Pilot District in Limpopo.

He spent a total of 9 years at Donald Fraser Hospital in Limpopo, starting with his community service there. It was during his year of community service that Dr. Kwinda was initiated into the management cadre when he was appointed as Acting Senior Medical Superintendent, and then became the Senior Clinical Manager from 2004-2011, becoming the youngest clinical/medical manager ever in Limpopo during his time.

His exceptional achievements earned him the Award by the South African Medical Association for Commitment to the Improvement of Public Health Services in Rural Areas in 2004, Award of Best Clinical Manager for Vhembe District for the 2007/8 financial year and Award by the Rural Doctors Association of South Africa (RuDASA) for Rural Doctor of the year in 2008.

After matriculating at Phophi Secondary School, he obtained a Bachelor of Science Degree from the University of Venda in 1995, followed by an MBCHB at Natal University in 2002. In 2011 he obtained his M.Med Family Medicine from the University of Limpopo, and has an MSc Med (Bioethics and Health Law) with the University of the Witwatersrand and currently studying towards a Bachelor of Laws Degree (Third Level) with the University of South Africa. Dr Kwinda is also a certified mediator

Dr. Kwinda has been involved in different leadership roles at both a professional level and community level, some of which are:

South African Medical Association
Member and Vice Chairperson of the Medical and Dental Professions Board (HPCSA)
Medico-legal Member of the Aeromedical Committee (Civil Aviation Authority – Current)
Council Member and Member of the Audit and Risk Committee and Governance Committee (Vaal University of Technology – 2017 - 2018)
Board Member for Mediation-In-Motion – Current
Member of the UNESCO National Bioethics Committee – Current
Guest lecturer at University of Witwatersrand Graduate Entry Medical and Master of Science in Medicine (Bioethics and Health Law) programmes
Guest lecturer at University of Pretoria Master of Public Health programme
Ethics Continuing Professional Development presentations at different forums.
Ordained Pastor at the United Apostolic Faith Church – Current

Frequently Asked Questions
1. Who is the Ombudsman?
“Ombudsman” means a person appointed by the council to mediate in the case of minor transgressions referred to him or her by the registrar for mediation.
2. What is a minor transgression?
“minor transgression” means conduct which, in the opinion of the registrar or preliminary committee of inquiry, on the basis of the documents submitted to the registrar or such committee, is unprofessional, but of a minor nature, and does not warrant the holding of a formal professional conduct inquiry.
3. How does the Ombudsman carry out the mediation process?
3.1. After receiving a complaint for mediation, the Ombudsman may call for further information in any manner he deems appropriate from any person who, in his opinion, may assist in the mediation to resolve the matter and this may include requesting a practitioner to respond to the complaint. 3.2. After receiving the information referred to in 3.1, the ombudsman considers the matter and mediate between the parties with a view of making a determination to resolve the matter between the parties. 3.3. After making the determination, the Ombudsman advises the parties of his determination on the matter and require them to indicate whether or not they will abide by the determination 3.4. If the parties agree to abide by the determination, the ombudsman confirms the determination in writing and the determination becomes binding on both parties as a final resolution of the matter. 3.5. If either party does not agree to abide by the determination, the matter is referred to the registrar for preliminary investigation.
4. What happens to the information obtained by the ombudsman during the mediation process?
The information obtained by the ombudsman in terms 3.1. above is confidential and privileged and, if a matter is referred for preliminary investigation in terms of 3.5. above, such information may not be considered by the preliminary committee of inquiry.
5. What is the difference between the “HPCSA Ombudsman” and the “Health Ombud”?

DESCRIPTION	HPCSA ‘OMBUDSMAN’	HEALTH ‘OMBUD’
Definition	“ombudsman” means a person appointed by the Council to mediate in the case of minor transgressions referred to him or her by the registrar for mediation.	Ombud means a person appointed by the Minister in consultation with the Board of the Office of Health Standard Compliance.
Establishment of the Office	Established in terms of Regulation 3 of the Regulations relating to the Conduct of Inquiries into alleged unprofessional conduct under the Health Professions Act	Established in terms of Section of section 81 of the National Health Amendment Act
Function	Mediate in the case of minor transgressions referred to him by the registrar	Investigate and dispose of written or verbal complaints relating to norms and standards
Jurisdiction	Complaints against health practitioners registered with the HPCSA	Complaints against health establishments including persons employed by health establishments, which may include health practitioners registered with the HPCSA
Powers	To consider the complaint and make a determination which is only binding if agreed by both parties	To investigate the complaint and make findings & recommendations which are binding
Referral powers	To refer matters falling outside the jurisdiction of HPCSA to relevant bodies and matters that matters that could not be mediated to the Professional Boards for preliminary investigation through the Registrar. The Professional Boards have no duty to report progress to the Ombudsman	To refer matters to other bodies and such bodies have a duty to report progress to the Ombud
Independence	Independent from the Professional Boards and reports to the Council through the Registrar	Independent from the Department of Health and CEO of OHSC AND reports to and accountable to the Minister of Health

6. Do I need legal representation when my matter is mediated by the Ombudsman?
Although either party may seek legal advice or support, legal representation is not required for matters referred to ombudsman for mediation. Therefore, any communication with the Ombudsman must be in the first person (the parties themselves).
7. What are the common complaints that are referred to ombudsman?
The most common complaints mediated by the ombudsman are related to: Communication Informed Financial Consent Billing practices Accounts Medical Reports The ombudsman may consider any other matter depending on the outcome desired by the complainant when lodging a complaint with council, professional board and/or the Registrar.
8. What is the proportion of complaints referred to the Ombudsman for mediation?
Currently, 39% of complaints received by the HPCSA are referred to Ombudsman for mediation
9. What is the mediation success rate?
On average, 96% of complaints are successfully mediated of 48% resolved telephonically with the parties including teleconferences, 43% resolved by electronic communication with the parties, and 9% resolved through contact mediation.
10. Can the ombudsman impose a penalty in terms of section 42(1) of the Health Professions Act.
The Ombudsman does not make a guilty finding and does not impose any penalty in terms of the Act. The Ombudsman can only make a determination which is only binding if agreed by both parties.
11. Can I lodge a complaint directly with the Ombudsman?
No. Complaints are lodged with the Registrar who in turn refer complaints of minor transgression to the Ombudsman for mediation.
12. Can a complainant request that his or her complaint be referred to ombudsman for mediation?
Although a complainant can make a request that his or her complaint be referred for mediation as the desired outcome when lodging a complaint, the decision to refer the complaint to the Ombudsman for mediation still lies with the Registrar.
13. Can a practitioner request that a complaint against him/her be referred to the Ombudsman for mediation?
No. This can only be decided by the Registrar and/or the Professional Board Concerned.
14. Does a determination by the Ombudsman constitute a record of previous conviction ?
No. The determination by the Ombudsman does not constitute a previous conviction on the practitioner’s certificate of status with Council
15. What are some of the matters that were successfully mediated by the Ombudsman and the outcomes thereof?
15.1. A death Notification completed wrongly. This was a case of a male who was injured on duty and was admitted at the hospital he passed away after three months of admission. The medical practitioner who completed the death notification forms registered the cause of death as “natural”. The effect of this was that the family could not receive the benefits of a death due to an injury on duty. A complaint was lodged twelve(12) years after the incident. Hospital records could not be found. The only relevant document found at the Department of Labour was the Final Medical Report of the deceased which indicated that he died of nosocomial infection. The medical practitioner acknowledged his error in writing which was accompanied by the letter from the Ombudsman to the Department of Labour and the case was re-opened, and the family received what was due to them twelve years after. This matter was resolved through a contact mediation 15.2. Wrongful use of Co-Payment. A practitioner charged the patient a Co-payment without informing the patient about the cost of services to be rendered and how much the medical scheme would cover for such costs. Information received revealed that the practitioner in fact charges a flat co-payment of R2000 for every patient. The practitioner was assisted to understand the application of co-payment in terms of Regulation 8 of the Medical Schemes Act Regulations and the patient was refunded the money paid as co-payment. This matter was resolved through a mediation by electronic communication. 15.3. Unprofessional Communication. A practitioner had an altercation with the parents of the child who was his patient and in the process told the father of the child that “you are acting like a monkey”. The complainant wanted the practitioner to apologise for using such words and not only to him, but also to the nurses who were present at the time he uttered such a statement. This matter was resolved through a contact mediation and the practitioner acknowledged that it was wrong of him to utter such a statement and a meeting was arranged with the hospital manager for the practitioner to apologize to the nurses who were present. 15.4. Claiming for services not rendered. A physiotherapist employed other physiotherapist in terms of Rule 8 of the Ethical Rules of Conduct under the Health Professions Act. After the physiotherapists rendered a service a claim was submitted to the medical scheme. On receiving the statement from the scheme, the patient disputed some of the items charged for and after failing to resolve the matter with the employer, a complaint was lodged with Council and referred to ombudsman for mediation as the complainant desired outcome was that the physiotherapist should reverse the items charged for services not rendered. This matter was resolved through a contact mediation and the physiotherapist reversed the claim for services not rendered. 15.5. Informed financial consent. An anesthesiologist failed to inform his patient about the cost of anesthesia and also of the fact that he does not belong to the designated service provider network for the patient’s medical scheme. After the medical aid paid there was a shortfall which the practitioner demanded from the patient. The matter was mediated electronically through email communication and the practitioner offered to write off the outstanding account as a way of resolving the matter.

Legislation

Health Professions Act, 56 of 1974	click here
Basic Conditions Employment Act	click here
Children's Act 38 of 2005	click here
Choice of Termination of Pregnancy Act, 92 of 1996	click here
Electronic Communications and Transactions Act, 25 of 2002	click here
Medical Schemes Act, 131 of 1998	click here
Medicines and Related Substance Act, 101 of 1965	click here
Mental Health Care Act, 17 of 2002	click here
Mine Health and Safety Act, 29 of 1996	click here
National Health Act, 61 of 2003	click here
National Environmental Management: Waste Act, 59 of 2008	click here
National Health Laboratory Services Act, 37 of 2000	click here