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Legal and Regulatory Affairs

Registration with the HPCSA is a pre-requisite for professional practice and it is also a legal requirement to keep all personal details up to date at all times.

Ombudsman

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 deciding 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 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. 
 
 
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 decide 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, 33% of complaints received by the HPCSA are referred to Ombudsman for mediation. 
9.     What is the mediation Case Clearance and Success Rate? 
The Ombudsman Case Clearance Rate is 90% and on average, 88% of complaints are successfully mediated of which 93% are resolved without a need for contact/virtual 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 decide 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. Some points to note about mediation:
  • Mediation creates a safe environment for the parties to be assisted by a third party to resolve the matter amicably confidentially and without prejudice (negotiations between parties which take place with a view of settling the disputes between them are privileged and cannot be disclosed) 
  • During mediation, the mediator uses specialized skills to assist the parties to generate options for the resolution of their dispute that are generally not available to the professional board processes which are litigious.  
  • Mediation focuses on the underlying concerns and interests of parties, exploring ways in how they can be satisfied. Hence, creating thinking is encouraged to optimize value for both parties to arrive at a win/win outcome. 
  • Legal representation is allowed at mediation, but during a contact mediation, legal representatives have an observer status and only participate during private sessions. 

15. What to expect during a contact/virtual mediation  

  • The ombudsman introduce himself and allow the parties to introduce themselves and state how they would like to be addressed during the mediation process. 
  • The Ombudsman gives a brief background about the HPCSA and the complaints management process with the emphasis that the ombudsman’s is one of the two areas where complaints are considered and finalized. 
  • The essential features of mediation are explained to the parties during a joint session. 
  • Then everyone (all parties) is given the opportunity to explain the events leading up to the complaint. 
  • Then the ombudsman holds private and confidential sessions with the parties to explore their interests and concerns and how these may be satisfied. The Ombudsman also establishes how far apart the parties are towards the resolution of the matter. 
  • These sessions can be as many as possible before a joint session to conclude the matter, where the ombudsman decides is held. 
  • All the private sessions are private and confidential, and the ombudsman may not disclose anything said to him at a private session to the other party, unless expressly authorized to do so. 
  • The entire mediation process is off the record and confidential…meaning that nobody is at liberty to disclose or to make use of any confidential information that would not have been disclosed but for mediation. 
  • The time usually allocated for contact/virtual mediation is three (3) hours. 
 


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