1. Legal Requirement on Complaints Management Presenter: Mr M Tlholoe Director Complaints Centre & Assessment Prepared for OHSC Consultative Workshops

2. PROGRAMME OUTLINE Purpose of presentation Introduction
Legislative and Policy Arrangements
Rationale for Complaint Management System
Snapshot of Complaints in the Province
Functions of the Ombud
Investigation of complaints
Independence, Impartiality & Accountability of the Ombud
Appeals against the Ombud decisions
Offences and Penalties
Last words

3. PURPOSE This presentation is intended to:
create awareness of the OHSC legal requirements on complaints lodged with the Office
Increase levels of responsiveness and cooperation
Demystifying the OHSC Complaints Management System

4. INTRODUCTION

5. INTRODUCTION…
Hodges (2006) observes that in managing quality, most successful organizations put high premium in satisfying their customers.
Quality has two main meanings:
Features of services/products which continuously meet customer’s needs; customer satisfaction
Freedom from defects in the processes of providing services which will ensure there are no complaints.
In placing an emphasis on patient-centered care, seeking and responding to patient feedback are important components of risk management programs.
Various methods are used to solicit community monitoring of health services
Complaints management system

6. LEGISLATIVE & POLICY ARRANGEMENT
Constitution, 1996
Section 27 guarantees a right to all citizens to quality care
Development of Quality Management Systems
White Paper on Transforming Public Service (Batho Pele), 1997
Emphasis on putting people first in delivering effective public services
Involvement of service users in planning, executing and evaluating services
White Paper for the Transformation of the Health System in South Africa, 1997
Set of policy objectives and principles upon which the unified National Health System will be based

7. …LEGISLATIVE & POLICY ARRANGEMENT
Norms and Standards for District Hospitals, 2001
The hospital has a patient complaints’ system in place.
The Primary Health Care Package for South Africa - A Set of Norms and Standards, 2001
The clinic has a formal, clear, structured complaint procedure and illiterate patients and those with disabilities are assisted in laying complaints.
National Health Act, 2003
Duty to disseminate information on the procedure of laying a complaint (S12 (f)
Affords communities a right to complain (S18)
OHSC given powers to investigate (S78(b), 79(c), 81A(1)

8. …LEGISLATIVE & POLICY ARRANGEMENT
Chapter 7 Procedural Regulations Pertaining to the Functioning of the Office of Health Standards Compliance and Handling Of Complaints by the Ombud, 2016
set out procedures and processes for the consideration, investigation and disposal of complaints relating to non-compliance with norms and standards by the Ombud.
Norms and Standards Regulations applicable to Different Categories of Health Establishments, 2018
The purpose of these regulations is to protect and promote the health and safety of users and health care personnel

9. …LEGISLATIVE & POLICY ARRANGEMENT
ISO 10002:2018 Quality management: Customer satisfaction - Guidelines for complaints handling in organizations
Provides guidance for organizations to plan, design, develop, operate, maintain and improve an effective and efficient complaints-handling process
National Development Plan
A health system that works for everyone and produces positive health outcomes
PRIORITY 2: Strengthen the health system
Accountability to users: Governance and management frameworks, from national to local levels, need to be effective, with the emphasis on accountability to users/communities.
Quality control: promoting quality, including measuring and benchmarking actual performance against standards for quality (OHSC).

10. …LEGISLATIVE & POLICY ARRANGEMENT
National Patients’ Rights Charter
To ensure the realisation of the right of access to health care services as guaranteed in the Constitution
Commitment to upholding, promoting and protecting patients’ right
Everyone has the right to complain about health care services and to have such complaints investigated and to receive a full response on such investigation.
National Guideline to Manage Complaints, Compliments and Suggestions in the Health Sector of South Africa, 2017
provide direction to the health sector of South Africa regarding the management of complaints, compliments and suggestions by ensuring that standards and measures as set out by the National Department of Health, the Department of Planning, Monitoring and Evaluation in the Presidency and the Department of Public Service and Administration are adhered to.

11. RATIONALE FOR COMPLAINTS MANAGEMENT SYSTEM
Assist health establishments to comply with legal requirements;
Obtain community perceptions about health service delivery;
Allow community involvement in assess quality standards;
Assess the standards and the quality of health services
Address the gap between expected and experienced services
CONTINUOUS QUALITY IMPROVEMENT

12. THREE-STAGE SYSTEM TO MANAGE COMPLAINTS IN THE PUBLIC SECTOR
Internal Mechanism
(Local resolution)
External Mechanism
Adapted from NDOH (2017): National Guideline to Manage Complaints, Compliments and Suggestions in the Health Sector of South Africa

13. SNAPSHOT OF COMPLAINTS
Data from the Annual Inspection Report 2016/17

14. …SNAPSHOT OF COMPLAINTS

15. …SNAPSHOT OF COMPLAINTS

16. …SNAPSHOT OF COMPLAINTS

17. …SNAPSHOT OF COMPLAINTS

18. …SNAPSHOT OF COMPLAINTS

19. CASES UNDER INVESTIGATION

20. BASIC COMPLAINTS MANAGEMENT PROCESS
Complaint Reported
Complaint acknowledged
Complaint Screening
Investigation
Reporting
(findings and recommendations)
Monitoring

22. 81A FUNCTIONS OF OMBUD
(1) The Ombud may, on receipt of a written or verbal complaint relating to norms and standards, or on his or her own initiative, consider, investigate and dispose of the complaint in a fair, economical and expeditious manner. (2) A complaint referred to in subsection (1) may involve an act or omission by a person in charge of or employed by a health establishment or any facility or place providing a health service.

23. 81A FUNCTIONS OF OMBUD …
(3) In conducting an investigation, the Ombud may, subject to subsection (8) – (a) be assisted by any person contemplated in section 81(3)(c); (b) (i) obtain an affidavit or a declaration from any person; (ii) direct any person to appear before him or her;

24. 81A FUNCTIONS OF OMBUD …
(iii) direct any person to give evidence or produce any document in his or her possession or under his or her control which has a bearing on the matter under consideration or being investigated; and (iv) interrogate such person; (c) request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter under consideration or which is being or to be investigated; and

25. 81A FUNCTIONS OF OMBUD …
(4) A direction contemplated in subsection (3)(b) may be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Ombud and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Ombud.

26. 81A FUNCTIONS OF OMBUD …
(5) If it appears to the Ombud that any person is being implicated in the matter being investigated, the Ombud must afford such person an opportunity to be heard in connection therewith by way of the giving of evidence, and such person is entitled, through the Ombud, to question other witnesses, determined by the Ombud, who have appeared before the Ombud in terms of this section.

27. 81A FUNCTIONS OF OMBUD …
(6) The Ombud may, when considering or investigating a complaint in terms of this section, require the assistance of or refer the complaint to any other authority established in terms of legislation or any other appropriate and suitable body or entity to investigate similar complaints.

28. 81A FUNCTIONS OF OMBUD …
(7) The authority, body or entity, as the case maybe, contemplated in subsection (6) must provide– (a) the Ombud with the assistance required; and (b) report to the Ombud on the progress made in relation to complaints referred to it. (8) No self-incriminating answer given or statement made by any person to the Ombud exercising powers in terms of this Act, is admissible as evidence against that person in criminal proceedings against that person instituted in any court, except in criminal proceedings for perjury or in which that person is tried for an offence contemplated in this Act, and then only to the extent that the answer or statement is relevant to prove the offence charged.

29. 81A FUNCTIONS OF OMBUD …
(9) After each investigation, the Ombud must submit a report together with his or her recommendations on appropriate action to the Chief Executive Officer. (10) Where the Chief Executive Officer fails to act in accordance with the findings and recommendations of the Ombud, the Ombud may request the intervention of the Minister.

30. 81A FUNCTIONS OF OMBUD …
(11) The Ombud must, after the conclusion of an investigation, inform the complainant or the respondent or both, as the case may be, of his or her findings and recommendations.

31. 81A FUNCTIONS OF OMBUD … Submissions regarding complaints (R36)
The Ombud may give notice to the complainant or the relevant health establishment, inviting submissions regarding a complaint, to be provided to the Ombud within a stated period.
The period for providing submissions must be reasonable, but may not be more than 20 working days from the date of notice.
The Ombud must consider each submission received within the period referred to in regulation 36(1).

32. EXAMPLE OF A NOTICE

33. COMMUNICATION VIA NHD

34. 81A FUNCTIONS OF OMBUD … Decision following screening (R 38):
(a) make a decision on whether‒
(i) to investigate the complaint;
(ii) to refer the complaint to any other statutory authority or other appropriate or suitable body or entity; or
(iii) to take no further action in relation to the complaint;
(b) give notice of the decision to the complainant and the relevant health establishment, and reasons for the decisions.

35. How we investigate?

36. How we investigate?
Our investigations are conducted in a way that ensures all parties are advised of the nature of the investigation and afforded an opportunity to reply to the allegations to ensure procedural fairness.

37. How we investigate? Develop the Investigation Plan
Identify and advise all parties involved, notices , 14days, 3days and notice of investigation
Seek expert advice (Complex Cases)
Gather Information: search for and establish facts
Documentary Evidence, face to face interviews ,Observations and Photographic Evidence
Evaluate the information obtained , What should have happened, what did happen, the discrepancies between the two, does this constitute improper conduct as envisaged in the prescribed legislation, policies, procedures and standards?
Provide opportunity to comment on preliminary findings then finalise the report and share it with all relevant stakeholders

38. PROVISIONS PROCEDURAL REGULATIONS
Complaint Investigations (R42)
The procedure for conducting an investigation must be such as the Ombud considers appropriate in the circumstances of the case, and in particular, he or she may make such inquiries, as he or she deems fit and must be in line with the applicable legislation.

39. PROVISIONS PROCEDURAL REGULATIONS…
Complaint Investigations (R43)
The Ombud must notify the relevant health establishment regarding the investigation and the process of investigation, before or when the investigation has been started.

40. PROVISIONS PROCEDURAL REGULATIONS…
Progress Reports (R44)
The Ombud must, every two months, give notice of the progress of an investigation to‒
(a) any health establishment being investigated; and
the complainant.

41. PROVISIONS PROCEDURAL REGULATIONS…
Period for completing Investigation (R45)
1) The Ombud must complete an investigation referred to in Regulation 42 within a period of 6months, unless extended in terms of sub-regulation after the decision to carry out the investigation.
(2) The Ombud may extend the period for completing an investigation if the Ombud reasonably considers that, in view of all the circumstances, including the size and complexity of the matters being investigated, it is not possible to complete the investigation by the due date.
(3) The period for completing an investigation may be extended more than once, but each extension may not be more than 3 months, provided the total period of the investigation does not exceed 2 years.

42. PROVISIONS PROCEDURAL REGULATIONS…
Investigations Register (R46)
The Ombud must keep a register, on its public website, of all investigations.
The register must list the following matters for each investigation-
type of norm or standard breached;
general nature of the matter being investigated;
date on which it was decided to carry out the investigation;
current due date for completing the investigation;
current status of the investigation; and
reason for each extension of the period of investigation.
3) The register must not include information that identifies or puts at risk a complainant, health establishment or person to whom a health care service was provided. 3)

43. PROVISIONS PROCEDURAL REGULATIONS…
Referral to and reports from other statutory authority or other appropriate and suitable body or entity (R49)
(1) When referring the matter, the Ombud must give the relevant statutory authority, or other
appropriate and suitable body or entity, all relevant information that the Ombud has regarding the matter, including, details of the complaint, the complainant and the relevant health establishment.

44. PROVISIONS PROCEDURAL REGULATIONS…
Referral to and reports from other statutory authority or other appropriate and suitable body or entity (R49)
(2) The statutory authority or other appropriate and suitable body or entity to which the matter was referred must provide the Ombud–
(a) written reports regarding progress on the matter, at regular intervals; and
(b) within 25 working days after completing the investigation, a written report of the results of the action taken regarding the matter.
(3) For the purposes of this regulation “statutory authority” means any authority established by or under a provincial or national legislation.

45. COMPLAINTS INVESTIGATION PROCESS FLOW
Two monthly progress reporting
Hearing
Yes
Process
Does the complaint need investigation?
Seek expert specialist advice No
Hearing needed?
Final report
Referral
Assign Investigator
Contact Complainant& Health Establishment
Need for appeal?
Report
Communicate draft decision
No action
Investigation
More information needed?
Appeal
Section 88A (1)
Close
Gather evidence

46. PROVISIONS PROCEDURAL REGULATIONS…
Confidentiality of information (R50)
Information obtained by the Ombud or persons designated in terms of section 81(3)(c) of the Act in the course of or for the purposes of an investigation may not be disclosed to any third party, except for the purposes of the investigation and any report to be made in respect thereof.
A health establishment may, by written notice explaining why the information is confidential, claim any information to be confidential.

47. PROVISIONS PROCEDURAL REGULATIONS…
Confidentiality of information (R50)
3) The Ombud must, within 10 working days of receipt of the notice referred to in sub-regulation (2), determine whether or not the information is confidential, and if the Ombud finds that the information is confidential, make any appropriate order concerning access to that information.
(4) The health establishment may, within 10 working days of the determination of the Ombud in terms of sub-regulation (3), lodge an appeal against such determination or an order contemplated in sub-regulation (3), to the Minister in terms of section 88A of the Act.

48. 81B INDEPENDENCE, IMPARTIALITY AND ACCOUNTABILITY OF OMBUD…
2 (b) must perform his or her functions in good faith and without fear, favour, bias or prejudice.
(3) The Minister, national department and Office must afford the Ombud such assistance and support as may be reasonably necessary for the Ombud to perform his or her functions effectively and efficiently.

49. 88A APPEALS AGAINST DECISIONS OF THE OFFICE OR OMBUD
(1) Any person aggrieved by any decision of the Office or any finding and recommendation of the Ombud in relation to a matter regulated by this Act, or a person acting on his or her behalf, may within 30 days of him or her gaining knowledge of that decision, lodge a written appeal with the Minister.

50. 89 OFFENCES AND PENALTIES
(1) A person is guilty of an offence if he or she–
(h) interferes with, hinders or obstructs the Ombud or any other person rendering assistance or support to the Ombud when he or she is performing or exercising a function or power under this Act.
Failure to cooperate with the notice
Giving false/ misleading information

51. LAST WORDS!
Section 47 of the NHA: Evaluating services of health establishment
All health establishments must comply with the quality requirements and standards prescribed by the Minister after consultation with the Office
The quality requirements and standards contemplated in subsection (1) may relate to human resources, health technology, equipment, hygiene, premises, the delivery of health services, business practices, safety and the manner in which users are accommodated and treated.
The Office must monitor and enforce compliance with the quality requirements and standards contemplated in subsection (1)

52. “REPUTATION IS WHAT YOUR DEEDS SAY ABOUT YOU!” - UNKNOWN
LAST WORDS…
“REPUTATION IS WHAT YOUR DEEDS SAY ABOUT YOU!” - UNKNOWN